UTERATVKE. 
SCIENCE. 


/ 


THE   GERMAN    EMPIRE 


THE  GERMAN  EMPIRE 


BY 

BURT  ESTES   HOWARD,  PH.D. 


THE   MACMILLAN   COMPANY 

LONDON :  MACMILLAN  &  CO.,  LTD. 
1906 

All  rights  reserved 


COPYRIGHT,  1906, 
Br  THE  MACMILLAN  COMPANY. 

Set  up  and  electrotyped.    Published  September,  1906. 


Norinoofi  JBrtsi 

J.  8.  Cashing  &  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


TO  THE  MEMORY 

OF 
JONATHAN  SAYRE  SLAUSON 


2017286 


CONTENTS 

CHAPTER  I 
THE  FOUNDING  OF  THE  GERMAN  EMPIRE 

CHAPTER  II 
THE  EMPIRE  AND  THE  INDIVIDUAL  STATES     ....      19 

CHAPTER  III 
THE  KAISER 28 

CHAPTER  IV 
THE  BUNDESRAT 48 

CHAPTER  V 
THE  REICHSTAG 79 

CHAPTER  VI 
IMPERIAL  LEGISLATION roo 

CHAPTER  VII 
THE  IMPERIAL  CHANCELLOR 123 

CHAPTER  VIII 

CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      .        .        .134 

vii 


viii  CONTENTS 


CHAPTER  IX 

FACE 

THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE        .       .       .171 

CHAPTER  X 
ALSACE-LORRAINE  AND  ITS  RELATION  TO  THE  EMPIRE   .        .    204 

CHAPTER  XI 
THE  CONSTITUTION  AND  IMPERIAL  FINANCE     .        .       .        .241 

CHAPTER  XII 
THE  ARMED  FORCES  OF  THE  EMPIRE 320 

CHAPTER  XIII 
THE  IMPERIAL  CONSTITUTION 403 

INDEX 437 


THE   GERMAN    EMPIRE 


THE  GERMAN  EMPIRE 

CHAPTER   I 
THE  FOUNDING   OF  THE   GERMAN  EMPIRE1 

THE  study  of  the  German  Empire,  from  a  juristic  stand- 
point, begins  with  the  founding  of  the  North  German  Bund. 
If,  with  the  formal  dissolution  of  the  Holy  Roman  Empire 
hi  1806,  one  period  of  the  constitutional  history  of  Germany 
ended,  the  disruption  of  the  German  Confederation,  in  1866, 
brought  another  period  of  that  history  to  a  no  less  definite 
termination.  The  break  between  the  North  German  Bund 

1  From  a  wealth  of  material  the  following  literature  may  be  cited :  Aigidi 
und  Klauhold,  Das  Staatsarchiv,  Bd.  X.  ff. ;  Glaser,  Archiv  der  Norddeut- 
schen  Bund,  Berlin,  1867;  Hahn,  Zwei  Jahre  preussisch-deutscher  Polilik, 
1866-67,  Berlin,  1868;  ibid.  Der  Krieg  Deutschland  gegen  Frankreich  und 
die  Grundung  des  deutschen  Kaiserreichs.  Die  Deutsche  Politik,  1867-?!, 
Berlin,  r87i ;  Von  Bezold,  Materialen  der  deutschen  Reichsverjassung,  3 
Bde.  mit  Register,  Berlin,  no  date ;  Otto  Mejer,  Einhitung  in  das  d.  Staats- 
recht,  2  Aufl.,  Freiburg  und  Tubingen,  1884;  Von  Sybel,  Die  Begrun- 
dungd.  D.  Reiches  durch  Wilhelm  /.,  7  Bde.,  Miinchen  und  Leipzig,  1889-94; 
Binding,  Die  Grundung  d.  N.  D.  Bund,  Leipzig,  1889.  Die  Drucksachen 
des  Reichstags  des  N.  D.  B.  for  1870  contain  very  valuable  material. 
Many  important  discussions  are  also  to  be  found  in  the  various  volumes  of 
Hirth's  Annalen  des  Deutschen  Reichs.  See  also  the  treatises  on  D.  Staats- 
recht  by  Laband,  Hanel,  Meyer,  Zorn,  Arndt,  and  the  Commentaries  of 
Arndt  and  Seydel.  Treitschke,  D.  Geschichte,  Bd.  I.,  and  Politik,  Bd.  II. 
Kloeppel,  Dreizig  Jahre  d.  Verjassungs-geschichte,  Leipzig,  1900.  Volume  I. 
alone  is  published.  Bismarck's  Gedanken  und  Erinnerungen,  2  Bde.,  Stutt- 
gart, 1898.  Two  good  histories  of  the  period  before  the  founding  of  the 
N.  D.  B.  are  Kaltenborn,  Geschichte  d.  deutschen  Bundesverhaltnisse  und 
Einheitstrebungen  von  1806  bis  1836,  2  Bde.,  Berlin,  1857;  and  KlUpfel, 
Geschichte  d.  D.  Einheitsbestrebungen  bis  zu  ihrer  Erjullung;  '1848-71,  2 
Bde.,  Berlin,  1872. 

B  I 


THE  GERMAN  EMPIRE 


and  the  German  Confederation  legally  is  no  less  sharp  than 
that  between  the  German  Confederation  and  the  old  Empire. 
The  legal  continuity  between  the  North  German  Bund  and 
the  present  Empire,  however,  is  complete.  The  modern 
German  State  is  not  something  different  juristically  from 
the  North  German  Bund.  It  is  rather  an  expansion  of  it. 
The  Imperial  Constitution  is  the  federal  constitution  revised. 

Long  before  the  tension  between  Prussia  and  Austria  had 
been  brought  to  the  point  of  breaking  by  the  deve-opment 
of  the  Schleswig-Holstein  affair,  the  constitutional  organiza- 
tion of  the  German  State,  under  the  provisions  of  the  Bundes- 
akt,  had  proven  hopelessly  inadequate.  That  some  form 
of  reorganization  was  inevitable  became  patent  to  every  one. 
What  that  form  should  be  was  not  so  clear.  The  unavoid- 
able and  irreconcilable  rivalry  between  Prussia  and  Austria 
indicated  plainly  that  in  the  reorganization  —  whatever  form 
it  might  take  —  one  of  these  two  great  powers  must  be 
eliminated.  The  decision  as  to  which  of  these  two  it  should 
be  was  rendered  by  history's  great  court  of  last  resort  —  War. 

On  the  ii  June,  1866,  Austria  moved,  in  the  Federal  Diet, 
the  mobilization  of  the  federal  army  against  Prussia,1  on 
the  ground  that  the  Prussian  government  had  resisted  the 
interposition  of  the  Diet  in  the  dispute  between  Austria  and 
Prussia  over  Schleswig-Holstein.  Prussia  had  maintained 
that  the  Schleswig-Holstein  matter  lay  outside  the  jurisdic- 
tion of  the  Confederation,  and  she  therefore  could  not  ad- 
mit the  right  of  the  Diet  to  interfere  in  an  affair  which  con- 
cerned the  two  great  powers  alone.  No  ground  existed, 
under  the  Bundesakt,  for  the  mobilization  of  the  federal 
troops  against  Prussia.  The  Prussian  government  could 
look  upon  the  motion  of  Austria,  therefore,  as  nothing  less 
than  a  declaration  of  war,  —  not  only  a  declaration  of  war 

1  Motion  printed  in  Hahn,  Zwei  Jahre,  etc.,  p.  118. 


THE    FOUNDING  OF  THE  GERMAN  EMPIRE  3 

on  the  part  of  Austria  against  Prussia,  but  a  declaration  of 
war  on  the  part  of  the  Confederation  against  a  member. 
This  was  an  act  directly  violating  the  organic  law  on  which 
the  Confederation  was  based.  Prussia  saw  in  the  motion 
to  mobilize  the  army  a  breach  of  the  union  which  must  be 
met  with  decisive  measures.1 

On  the  14  June,  1866,  the  Diet  assented  to  the  Austrian 
proposition  and  ordered  the  mobilization  of  the  yth,  8th,  gih, 
and  loth  army  corps.  Prior  to  the  vote,  the  Prussian  am- 
bassador made  the  following  statement:  "The  Prussian 
ambassador  must  vote  against  any  and  every  action  with 
respect  to  the  motion  of  Austria,  as  contrary  to  the  form  and 
content  of  the  union,  and  herewith  enters  an  express  protest 
against  such  action,  in  the  name  of  his  government."  2  The 
vote  stood  nine  to  six  in  favor  of  the  motion.3  Thereupon 
the  Prussian  ambassador  declared  that  his  government  must 
regard  the  action  of  the  Diet  as  in  open  conflict  with  the 
Constitution,  and  as  a  breach  of  the  federal  relation.  "In 
the  name  and  upon  the  command  of  his  Majesty,  the  King, 
the  ambassador  therefore  declares  that  Prussia  looks  upon  the 
treaty  of  union,  hitherto  .existent,  as  hereby  broken,  and, 
on  that  account,  as  no  longer  binding,  will  consider  the 
same  as  dissolved  and  will  so  act.  However,  his  Majesty, 

1  "  Vollends   wurde   die   Annahme   des  osterreichischen  Antrages   nicht 
bios  als  ein  Akt  offener  Feindseligkeit  gegen  Preussen,  sondern  auch  als 
ein  entscheidener  Bundesbruch  aufzufassen  und  zu  behandeln  sein."     Be- 
merkungen  der  Provinzial-Correspondenz  von  13  Juni,  1866,  cited  by  Hahn, 
op.  cit.  p.  121. 

2  Ibid.  p.  124. 

3  The  votes  were   as  follows :   Affirmative  —  Austria,   Bavaria,  Saxony, 
Wiirttemberg,  Hannover,  Hesse,  both  Grand  Duchy  and  Electorate,  Nassau, 
and  the  :6th  Curia,  consisting  of  Lichtenstein,  Reuss,  etc.    Negative  —  Saxe- 
Weimar  and  the  Thiiringian    Duchies  with  the  exception  of   Meiningen, 
Oldenburg,    Anhalt-Schwartzburg,    Mecklenburg,    the    Free    Cities    except 
Frankfurt,  Luxemburg,  and  Baden.     Prussia  did  not  vote,  regarding  the 
whole  transaction  as  unconstitutional. 


THE  GERMAN  EMPIRE 


the  King,  will  not  regard  the  national  foundation  on  which 
the  Confederation  has  been  built  as  destroyed  with  the  dis- 
solution of  the  union  which  has  existed  up  to  this  time."1 
With  the  question  whether  the  position  of  Prussia  was  well 
taken  or  not,  the  present  discussion  has  nothing  to  do.  In 
the  light  of  subsequent  events,  such  a  question  can  have 
only  a  doctrinaire  interest.  The  student  of  German  affairs 
is  confronted  by  a  fact,  not  by  a  theory.  That  fact  is  the 
open  rupture  between  Prussia  and  Austria,  into  which,  as 
adherents  to  one  or  other  of  the  parties,  the  members  of  the 
Confederation  were  drawn.  Whether  the  Confederation  was 
legally  dissolved  or  not,  whether  the  action  of  the  Diet 
justified  Prussia's  contention  or  not,  so  far  as  the  actual 
situation  was  concerned,  the  old  relation  between  the  Ger- 
man States  had  gone  to  pieces. 

With  the  Preliminary  Peace  of  Nicolsburg,  26  July,  1866, 
following  the  short  but  victorious  Prussian  campaign,  the 
problem  of  reconstruction  forced  its  way  to  the  front.  Per- 
haps it  were  more  accurate  to  say  that  the  problem  was  one 
of  construction,  rather  than  of  reconstruction,  —  to  organize 
out  of  the  dispersed  elements  of  the  old  Confederation  a 
new  political  and  constitutional  structure,  which  should 
avoid  the  weakness  of  the  old  loose  union  and  prove  itself 
sufficient  for  the  tasks  which  must,  in  the  nature  of  things, 
be  laid  upon  it. 

Two  very  definite  ideas  had  shaped  themselves  in  the  mind 
of  those  best  fitted  to  grasp  the  real  state  of  affairs  under  the 
confederation:  first,  that  the  organization  of  the  German 
State  on  an  international  basis,  carrying  with  it  necessarily 
the  unit  rule  in  the  determination  of  all  public  questions, 
must  be  replaced  by  a  closer  federation,  invested  with  larger 
powers;  and,  second,  that  no  such  union  could  be  consum- 

1  Glaser,  Archiv,  I.  p.  27;  Hahn,  op.  tit.  pp.  124  ff. 


THE   FOUNDING   OF  THE   GERMAN   EMPIRE  5 

mated  so  long  as  Prussia  and  Austria,  each,  as  a  world  power, 
unwilling  to  become  subordinate  to  the  other,  were  members 
of  the  federation. 

The  second  of  these  ideas,  the  elimination  of  Austria  from 
the  problem  of  a  reorganized  Germany,  was  accomplished 
by  the  terms  of  the  Treaty  of  Prag,  23  August,  1866,  in  which 
"his  Majesty,  the  Kaiser  of  Austria,  recognizes  the  dissolu- 
tion of  the  German  Confederation  and  gives  his  consent  to 
a  new  formation  of  Germany,  in  which  the  imperial  State 
of  Austria  shall  have  no  part.  Moreover,  his  Majesty 
promises  to  recognize  the  narrower  federal  relations  which 
his  Majesty,  the  King  of  Prussia,  shall  establish  north  of 
the  Main,  and  declares  himself  also  willing  to  allow  the  Ger- 
man States  south  of  the  Main  to  join  themselves  into  a  union, 
whose  national  association  with  the  North  German  Bund 
shall  be  reserved  for  a  more  detailed  agreement  between  the 
two  parties."  To  this  agreement  the  remaining  opponents 
of  Prussia  also  subscribed,  with  the  exception  of  Hannover, 
Kur- Hesse,  Nassau,  and  Frankfurt,  whose  independent  exist- 
ence has  ceased  through  conquest  and  subsequent  incorpora- 
tion in  the  Prussian  State.1 

The  Treaty  of  Prag  cleared  the  way  for  a  constructive 
work  —  for  the  erection  of  a  new  and  true  State  in  the  room 
of  the  old  confederacy.  In  this  movement  Prussia  naturally 
assumed  the  lead.  As  early  as  June  10,  1866,  Bismarck, 
foreseeing  the  inevitable,  had  addressed  a  circular  note  to 
the  German  governments,2  in  which,  after  referring  to  the 
failure  of  Prussia,  earlier  in  the  year,  to  put  through  a  motion 
looking  to  a  reformation  of  the  Bund,  asks  for  an  immediate 
answer  to  the  question  "  whether,  should  the  relations  exist- 

1  See  Treaty  with  Baden,  Bavaria,  Hesse,  Reuss  a.  L.,  Saxe-Meiningen, 
Saxony,  August  to  October,  1866. 

2  See  Hahn,  op.  cit.  p.  123. 


THE  GERMAN   EMPIRE 


ing  between  the  members  of  the  Bund  be  dissolved  by  a 
threatened  danger  of  war,  they  (the  governments)  would  be 
inclined  to  favor  a  new  Bund,  to  be  erected  on  the  basis  of 
these  modifications  of  the  old  treaty  of  union."  "  These 
modifications  "  referred  to  a  series  of  changes  submitted  to 
the  governments,  together  with  the  circular  despatch,  under 
the  titles  "  Principles  for  a  New  Federal  Constitution."  *  To 
such  an  extent  does  this  document  forecast  the  later  con- 
stitution of  the  North  German  Bund  that  it  may  be  properly 
styled  the  "  first  draft "  of  that  instrument.  Four  days  after 
the  date  of  this  note  occurred  the  dramatic  scene  on  the  floor 
of  the  Bundestag,  when  the  Prussian  representative  declared 
the  Bund  no  longer  existent. 

On  the  1 6  June,  Prussia  addressed  an  identical  note  to 
all  the  governments  of  the  North  German  States,  with  the 
exception  of  Hannover,  Saxony,  Kur-Hesse,  Hesse-Darm- 
stadt, and  Luxemburg,  proposing  a  union.  These  govern- 
ments accepted  the  proposition,  with  the  exception  of  Saxe- 
Meiningen  and  Reuss  a.  L.  On  4  August,  1866,  Prussia  laid 
before  these  friendly  governments  the  draft  of  a  treaty  of 
union,2  which  was  definitely  adopted  at  Berlin  on  18  August.3 
This  action  was  a  purely  international  arrangement  between 
Prussia  and  the  fifteen  German  States  north  of  the  Main, 
and  is  known  as  the  "August  Treaty."  The  two  Mecklen- 
burgs  entered  into  the  relation  on  21  August,4  the  grand 
duchy  of  Hesse,  for  that  part  of  its  territory  north  of  the 
Main,  through  the  Treaty  of  Peace  on  3  September;5  the 
principality  of  Reuss  a.  L.,  the  duchy  of  Saxe-Meiningen, 
and  the  kingdom  of  Saxony  on  the  26  September,  8  October, 
and  21  October  respectively.6  The  number  of  contracting 

1  The  text  of  these  "  Grundziige"  is  found  in  Hahn,  op.  cit.  pp.  121  ff. 
1  Ibid.  p.  462.  8  Ibid.  p.  463.  4  Ibid.  p.  464. 

8  Slaatsarchiv ,  XI.  2375.  *  Ibid.  2430,  2432,  2434. 


THE  FOUNDING  OF  THE  GERMAN    EMPIRE  7 

parties  to  the  August   Treaty  was   thus  raised  to  twenty- 
two. 

With  the  conclusion  of  the  August  Treaty,  a  definite  and 
positive  step  was  taken  toward  the  erection  of  a  German 
federal  State.  The  terms  of  the  treaty  provided  for  an  offen- 
sive and  defensive  alliance  between  all  the  signatory  powers, 
with  the  assignment  of  the  chief  command  over  the  military 
forces  of  the  allies  to  the  king  of  Prussia.  Further,  the 
August  Treaty  was  not  to  be  perpetual,  but  was  to  have 
binding  force  for  a  year,  at  the  longest,  unless  it  terminated 
earlier  through  the  carrying  out  of  its  provisions.  The  main 
principle  of  the  treaty,  in  fact  its  raison  d'etre,  was,  as  the 
wording  of  Article  2  explicitly  states,  to  establish  finally  a 
federal  constitution,  on  the  basis  of  the  Prussian  draft  of 
10  June,  1866,  with  the  cooperation  of  a  general  parliament 
to  be  summoned  for  that  purpose.  That  is  to  say,  the 
August  Treaty  does  not,  nor  does  it  intend  to,  create  a  new 
state.  It  was  merely  an  international  agreement  between 
the  several  governments  to  meet  within  a  year  from  date, 
together  with  a  body  chosen  by  popular  representation,  and 
definitely  decide  upon  a  federal  constitution  which  should 
take  the  place  of  the  offensive  and  defensive  alliance  provided 
for  in  the  treaty.  Should  such  a  constitution  be  not  fixed 
upon  within  the  prescribed  time,  the  treaty  terminated.  The 
method  by  which  the  constitution  was  to  be  drawn  up  was 
laid  down  in  Art.  5  of  the  treaty,  which  reads :  "the  allied 
governments  will  order,  simultaneously  with  Prussia,  the 
election  of  delegates  to  a  parliament,  in  accordance  with 
the  provisions  of  the  imperial  law  of  12  April,  1849,  and 
summon  them  in  common  with  Prussia.  At  the  same  time 
will  they  send  plenipotentiaries  to  Berlin,  in  order  to  fix 
upon  a  draft  of  a  federal  constitution,  in  conformity  to 
the  'Principles'  of  10  June,  1866,  which  draft  shall  be 


8  THE  GERMAN  EMPIRE 

laid  before  the  parliament  for  its  consideration  and  con- 
sent." 

The  treaty  of  18  August,  1866,  constitutes  the  international 
base  for  the  erection  of  the  North  German  Bund.  "Aside 
from  the  alliance  defensive  and  offensive  for  the  period  of 
one  year,  the  contracting  parties  pledge  themselves  to  a  single 
transaction,  to  the  performance  of  one  act,  which,  from  its 
very  nature,  cannot  be  repeated,  to  wit,  the  production  of  a 
federal  constitution.  They  do  not  establish  a  constitution, 
but  they  pledge  themselves  to  establish  one.  They  do  not 
agree  upon  a  constitution,  but  they  do  agree  upon  a  method 
by  which  a  constitution  shall  be  determined  upon."1  The 
August  Treaty  was  a  contract  between  the  governments 
taking  part  in  it,  creating  a  temporary  offensive  and  defensive 
alliance,  not  longer  than  a  year  in  duration,  and  obligating 
those  governments  to  determine  upon  a  federal  constitution, 
within  that  period,  which  should  supersede  the  alliance. 
It  was  a  purely  international  contract  and,  as  such,  did  not, 
and  could  not,  create  a  new  state.  Further,  the  duration  of 
the  alliance  terminated  with  the  establishment  of  the  new 
federal  relation  in  the  fulfilment  of  the  contract.  In  other 
words,  the  treaty  of  18  August,  1866,  ceased  to  exist  upon  its 
fulfilment,  and  with  it  ceased  the  international  alliance  be- 
tween the  several  contracting  governments. 

Looking  closely  at  the  treaty,  the  contracting  parties  bind 
themselves  to  two  subsidiary  acts  in  fulfilment  of  the  main 
purpose  of  the  agreement:  (i)  to  order  an  election  to  a 
parliament,  and  (2)  to  despatch  plenipotentiaries  to  Berlin  for 
the  purpose  of  determining  a  draft  of  a  constitution.  In 
meeting  the  first  of  these  two  it  was  necessary  to  put  in  force 
the  imperial  law  of  12  April  1849,  m  eac^  several  State;  in 
other  words,  to  give  this  law,  in  such  ways  as  each  several 

1  Laband,  I.  p.  16.     Cf.  also  Hand,  Studien,  I.  p.  69. 


THE  FOUNDING  OF  THE  GERMAN  EMPIRE  9 

State  might  choose  to  do  so,  the  force  of  a  State  law.  In 
Prussia,  even  before  the  signatures  were  appended  to  the 
August  Treaty,  —  that  is,  on  13  August,  1866,  —  the  govern- 
ment laid  before  the  Landtag  the  "draft  of  a  law  touching 
the  election  to  the  Reichstag  of  the  North  German  Bund." 
The  purpose  of  this  law  was,  as  the  bill  declared,  "  to  secure 
in  Prussia  a  legal  foundation  for  the  election  to  the  parlia- 
ment." In  conformity  to  the  stipulations  of  the  proposed 
August  Treaty,  this  draft  was  a  reproduction  of  the  law  of 
12  April,  1849.  In  considering  this  draft,  however,  the 
Prussian  House  of  Delegates  modified  the  measure  in  such 
wise  that  the  parliament  to  be  elected  was  granted  power, 
not  to  give  final  form  to  the  Constitution  of  the  North  German 
Bund,  but  to  confer  or  deliberate  with  respect  to  such  Con- 
stitution. The  adoption  of  the  new  federal  Constitution 
would  necessarily  involve  considerable  modification  of  the 
several  State  constitutions.  Prussia  was  unwilling  to  con- 
cede to  any  general  body  of  men  the  right  to  amend  her 
constitution.  Further,  Prussia  did  not  propose  to  relinquish 
her  right  to  a  voice  in  the  final  shaping  of  the  constitution 
for  the  proposed  Bund,  nor  did  she  care  to  be  put  in  the  posi- 
tion of  having  the  federal  State  erected  over  her  head,  with 
no  opportunity  for  her  Landtag  to  express  itself  definitely 
in  the  matter  of  its  organization.  This  view  of  Prussia  was 
shared  by  the  other  States,  with  the  exception  of  Brunswick. 
The  original  idea  of  the  August  Treaty  was  therefore  modified 
to  the  extent  that  the  plenipotentiaries  of  the  several  States 
and  the  parliament  were  not  given  power  to  determine  the 
final  form  of  the  constitution,  but  only  to  deliberate  over  it 
and  bring  in  a  draft  that  should  be  referred  to  the  legislative 
bodies  of  the  several  States  for  their  final  action. 

Pursuant  to  the  stipulations  of  the  August  Treaty,  on 
invitation   of   the    Prussian    government,    plenipotentiaries 


10  THE  GERMAN  EMPIRE 

from  the  various  States  met,  in  a  confidential  conference,  in 
Berlin,  on  15  December,  1866.  In  the  name  of  Prussia, 
Bismarck  laid  before  the  assembly  a  draft  of  a  constitution, 
containing  a  somewhat  more  detailed  working  out  of  the 
"Principles"  of  10  June,  i866.1  This  is  referred  to  by  Ger- 
man writers  as  the  "second  draft  of  the  Constitution."  The 
meeting  was  not  an  open  one,  and  no  record  was  kept  of  the 
debates.  On  the  7  February,  1867,  Prussia  having  consented 
to  a  number  of  amendments  proposed  by  the  other  States,  the 
assembly  of  plenipotentiaries  united  on  the  draft  of  the  consti- 
tution to  be  presented  to  the  parliament,  not  yet  assembled.2 

The  general  election  of  members  of  the  parliament  took 
place  on  the  12  February,  1867,  and  the  delegates  met  in 
Berlin  on  the  24th  of  that  month.  The  debate  over  the  pro- 
posed constitution  lasted  from  9  March  to  16  April.  Numer- 
ous amendments  were  proposed  by  parliament,  and  the 
final  draft  was  agreed  upon,  16  April,  1867,  by  a  vote  of  230- 
53.  On  this  same  date,  the  assembly  of  plenipotentiaries 
met  and  "  resolved  to  accept  the  draft  of  a  constitution  as  it 
was  finally  passed  upon  by  the  parliament."  This  action 
was  announced  to  the  parliament  by  Bismarck  on  the  follow- 
ing day. 

Both  the  assembly  of  plenipotentiaries  and  the  parliament 
had  now  definitely  agreed  upon  the  text  of  the  Constitution. 
Nevertheless,  that  document  had  still  no  binding  force.  It 
was  only  a  draft  of  a  proposed  constitution.  Its  content  had 
been  determined  in  accordance  with  the  provisions  of  the 
August  Treaty,  but  the  Constitution  itself  had  no  validity. 
It  did  not  become  operative  with  the  mere  agreement  of  the 

1  For  text  of  this  draft,  v.  Binding,  Staatsgrundgesetze,  Heft  I.,  grossere 
Ausgabe,  pp.  75  ff . ;  also  app.  to  Kittel,  Die  Preuss,  Hegemonic,  pp.  40  ff .  Cf. 
also  Hanel,  Studien,  I.  pp.  273  ff.;  also  Hahn,  op.  cit.  pp.  483-485. 

1  See  text  in  Binding,  op.  cit.  p.  75. 


THE  FOUNDING  OF  THE  GERMAN  EMPIRE  II 

deliberative  bodies  as  to  the  text  of  it.1  The  parliament  was 
not  given  power  to  adopt  and  give  legal  effect  to  a  constitu- 
tion, but  only  to  deliberate  over  the  text  of  a  constitution. 
The  German  Constitution  does  not  rest  upon  an  agreement 
made  between  the  representatives  of  the  several  State  gov- 
ernments and  the  members  of  a  general  parliament.  "  The 
parliament  was  not  one  of  the  'parties'  to  the  Constitution, 
but  only  a  means  of  coming  to  some  sort  of  an  agreement  over 
the  Constitution.  It  had  no  legal  powers,  but  simply  a  po- 
litical duty.  It  was  meant  to  balance  the  divergent  views 
and  particularistic  tendencies  of  the  several  governments, 
and  its  consent  should  serve  as  a  guarantee  that  the  Constitu- 
tion, as  agreed  upon,  should  correspond  to  the  political  views 
and  desires  of  the  people,  to  public  opinion.  The  'agree- 
ment' between  the  governments  and  the  parliament  was  a 
harmonizing  of  views  as  to  what  sort  of  a  constitution  should 
be  given  to  the  Bund,  and  the  result  of  that  'agreement'  was 
not  to  impart  validity  to  a  constitution,  but  to  produce  the 
draft  of  a  constitution."2 

In  conformity  to  the  requirements  of  the  August  Treaty, 
the  draft  of  the  Constitution  had  now  been  made.  There 
still  remained  the  fulfilment  of  the  pledge  to  found  a  federa- 
tion. This  could  not  be  done  without  the  consent  and  the 
concurrent  action  of  the  legislative  bodies  of  the  several 
States.  This  consent  was  given  by  all  the  States  belonging 
to  the  North  German  Bund,  in  the  form  provided  by  the  or- 
ganic law  of  the  State  for  constitutional  amendments,  and 
the  Constitution  of  the  North  German  Bund  was  published 
in  the  Gazette  of  each  individual  State,  except  Brunswick 

1  See  discussion  of  Binding,  in  his  pamphlet,  Die  Grundung  d.  N.  D. 
Bund,  and  the  refutation  of  his  arguments  by  Laband,  I.  pp.  22,  23.  Also 
Hanel,  Staatsr.  I.  pp.  19  ff. ;  Meyer,  Slaatsr.  pp.  164,  165. 

1  Laband,  I.  p.  23. 


12  THE  GERMAN  EMPIRE 

and  Bremen,  who  had  already  given  their  consent  previous 
to  the  meeting  of  parliament  and  the  assembly  of  plenipoten- 
tiaries. In  each  formula  of  publication  it  was  stated  that 
the  new  Constitution  should  go  into  effect  on  i  July,  1867. 

It  is  at  this  stage  of  the  proceedings  that  controversies 
arise  as  to  the  juristic  significance  of  this  action  on  the  part 
of  the  State  legislatures.  Seydel,  the  Calhoun  of  Germany, 
declared  that  by  the  action  of  the  legislatures  of  the  several 
States,  the  Constitution  of  the  North  German  Bund  became 
part  of  the  municipal  law  of  each  commonwealth;  that  it 
was  an  identical  State  law,  no  more,  no  less,  and  that  the 
laws  published  on  the  basis  of  this  Constitution  derived  their 
validity  from  the  constitution  of  the  State.  Hanel,  on  the 
other  hand,  shows  that  the  Federal  Constitution  dealt  with 
matters  which  it  was  impossible  for  the  State  law  to  deal  with, 
and  that  it  presupposed  a  union  of  States,  whose  organiza- 
tion it  defined.  A  State  law  can  legally  control  only  such 
matters  as  fall  within  the  sphere  of  the  State.  It  does  not 
extend  to  such  as  contemplate  or  anticipate  the  existence  of 
several  States.  "The  legal  regulation  of  such  a  relation  of 
coexistence  lies  beyond  the  realm  of  sovereignty  of  any  single 
State,  and  consequently  of  any  State  law.  The  North  Ger- 
man Bund,  therefore,  could  never  acquire  an  actual  and  legal 
existence  through  the  sum  of  identical  and  particular  laws." 
Laband  declares  that  the  Constitution  of  the  North  German 
Bund  is  not  an  identical  State  law,  nor  did  it  obtain  its  sanc- 
tion from  the  State  power  in  any  particular  State.  The 
decision  of  the  State  to  enter  the  Bund  defined  by  the  Con- 
stitution, however,  was  affirmed  in  each  State  by  State  law. 
The  Publication  Law  of  June,  1867,  did  not  determine  the 
Constitution,  but  is  a  declaration  of  entrance  into  the  Bund 
which  that  Constitution  outlines.  No  State  had  any  power 
to  introduce  the  Constitution  by  itself  as  State  law,  but  each 


THE  FOUNDING  OF  THE  GERMAN  EMPIRE  13 

State  could  declare,  in  the  form  of  law,  that  it  would  take  part 
in  the  erection  of  the  North  German  Bund  on  i  July,  1867. 
The  several  articles  of  the  Constitution  are  not  introduced 
into  the  territory  of  each  State  as  State  law,  but  the  Publica- 
tion Patent  gives  sanction  to  a  single  clause,  which  is  every- 
where the  same  and  runs :  The  State  x  belongs  from  the  i 
July,  1867,  to  the  North  German  Bund.  The  Publication 
Law  is  a  governmental  transaction  requisite  to  the  successful 
carrying  out  of  the  terms  of  the  August  Treaty.  With  this 
founding  of  the  Bund  the  stipulations  of  the  August  Treaty 
were  fully  met.  The  Treaty  expired  through  its  fulfilment. 
The  international  agreement  between  the  States  became  a 
constitution.  What  had  been  a  league  became  a  State.  The 
contract  relation  between  the  several  States  ceased  to 
exist. 

The  North  German  Bund  was  erected  on  i  July,  1867. 
"When,  on  14  July,  1867,  the  king  of  Prussia  appointed 
Graf  von  Bismarck  as"  chancellor  of  the  Bund,  and  ordered, 
on  the  26  July,  the  issuance  of  the  Federal  Gazette  with  the 
publication  of  the  Constitution  in  the  first  number  thereof, 
the  North  German  Bund  was  already  in  existence  and  the 
Constitution  already  in  force."  King  William  acted  by 
reason  of  a  power  given  him  by  the  Constitution.  The  pub- 
lication was  not  an  act  of  legislation.  The  "  Publicandum " 
of  26  July,  1867,  with  which  the  Gazette  begins,  contains  no 
clause  which  imparts  validity  to  the  Constitution,  but  the 
king  "gives  notice,  and,  in  the  name  of  the  North  German 
Bund,  announces,  that  the  Constitution  of  the  North  Ger- 
man Bund,"  —  here  follows  the  text  —  "  was  promulgated  on 
the  25  June,  of  the  present  year,  and  went  into  force  on  the 
i  July."  So  the  i  July,  1867,  is  the  birthday  of  the  North 
German  Bund,  and  the  sum  total  of  the  legislative  acts  of  the 
several  States,  twenty- two  in  all,  was  the  act  which  created 


14  THE  GERMAN  EMPIRE 

it.  The  ''North  German  Bund  brought  its  Constitution 
with  it  into  the  world." 

By  the  Treaty  of  Prag,  the  North  German  Bund  could  not 
extend  itself  south  of  the  Main.  The  German  States  lying 
beyond  the  line  of  the  Main  were  left  free  to  form  a  union  of 
their  own,  whose  ultimate  relations  with  the  North  German 
Bund  were  to  be  determined  by  their  own  independent  action. 
This  union  never  came  into  being.  In  its  place  arose  a  rela- 
tionship based  on  individual  treaties  between  the  several 
States  and  the  Bund,  which  subsequently  led  to  the  formation 
of  the  Empire.  Upon  the  conclusion  of  the  treaty  of  peace, 
an  offensive  and  defensive  alliance  had  been  made  between 
Prussia  and  the  South  German  States,  whereby,  in  case  of 
war,  the  troops  of  all  Germany  were  to  be  placed  under  the 
command  of  the  Prussian  king.  This  was  before  the  erec- 
tion of  the  Bund.  It  effected  a  military  unity  of  the  whole 
of  Germany  prior  to  the  founding  of  the  federal  relation. 
All  the  troops  were  to  be  fashioned  on  the  Prussian  model. 

The  Customs  Union  Treaty  of  8  July,  I867,1  was  also 
instrumental  in  bringing  about  a  closer  union  of  the  two 
sections  of  country.  This  Union,  established  as  early  as 
1833  and  destroyed  by  the  war  of  1866,  had  had  for  decades 
as  its  motto  the  sentence  which  now  is  adopted  by  the  Impe- 
rial Constitution :  "  Germany  forms  one  territory  in  matters 
of  tariff  and  of  trade,  surrounded  by  common  boundaries." 
The  Treaty  was  renewed  on  8  July,  1867,  to  run  for  twelve 
years,  and  by  tacit  consent,  should  no  notice  of  termination  be 
given,  for  another  like  period.  The  affairs  of  the  Union 
were  managed  by  a  Tariff-union  legislature,  composed  of  a 
Tariff  Bundesrat  and  a  Tariff  parliament.  The  Tariff  Bundes- 
rat  was  made  up  of  the  Bundesrat  of  the  North  German 
Bund,  plus  representatives  from  the  South  German  States,  — 

1  RGBl.  p.  81. 


THE  FOUNDING  OF  THE  GERMAN  EMPIRE  15 

identical  with  the  present  Bundesrat  of  the  Empire,  — 
while  the  Tariff  parliament  was  composed  of  the  Reichstag 
of  the  Bund  plus  eighty-five  members  elected  from  the 
South  German  States,  on  the  basis  of  the  equal,  general,  secret 
suffrage  prevailing  hi  the  Bund.  The  laws  of  the  Union 
were  to  take  precedence  of  federal  laws,  that  is,  of  the  laws 
of  the  Bund.  The  Presidency  belonged  to  Prussia  and  car- 
ried an  indirect  veto,  through  the  Prussian  plenipotentiaries, 
of  all  laws,  administrative  arrangements,  and  provisions. 
The  treaty  was  accepted  by  the  Reichstag  of  the  North  Ger- 
man Bund,  26  October,  1867.  A  number  of  other  treaties, 
concluded  before  the  war,  revived,  so  far  as  was  consistent 
with  the  new  political  form  of  Germany,  and  several  new 
treaties  guaranteeing  legal  aid,  providing  for  military  free- 
dom of  migration,  for  postal  arrangements,  etc.,  were  made. 
Thus,  before  the  advent  of  the  Empire,  its  approach  was 
already  shadowed  forth  in  the  relations  existing  between  the 
Bund  and  the  South  German  States. 

The  Constitution  of  the  Bund,  also,  looked  toward  the 
ultimate  union  of  all  Germany  in  one  great  political  body. 
Article  79  of  that  instrument  reads :  "The  entry  of  the  South 
German  States,  or  any  one  of  them,  into  the  Bund  shall  take 
place  upon  the  proposal  of  the  Praesidium  of  the  Bund,  in 
the  way  of  legislation."  All  provision  had  been  made,  in 
the  very  beginning,  for  an  extension  of  the  Bund  to  South 
Germany  and  for  the  erection  of  the  Empire.  The  war  of 
1870,  with  France,  brought  the  sense  of  national  unity  to 
fruition.  On  the  declaration  of  hostilities,  the  South  Ger- 
man States  stood  fast  for  a  united  Fatherland.  They  fought 
side  by  side  with  the  Prussian  troops  in  defence  of  their 
common  country. 

"The  initiative  came  from  Bavaria.  The  government  of 
Bavaria,  in  the  course  of  September,  1870,  gave  the  Prae- 


1 6  THE  GERMAN  EMPIRE 

sidium  of  the  Bund  to  understand  that  the  political  relations 
of  Germany,  as  they  had  been  brought  about  by  the  warlike 
events,  necessitated,  according  to  its  conviction,  a  departure 
from  the  international  treaty  which  had  hitherto  bound  the 
South  German  States  to  the  North  German  Bund,  and  called 
for  a  constitutional  bond."1  In  other  words,  the  South 
German  States  had  come  to  the  conclusion  that  no  relation 
based  upon  international  treaty  would  longer  suffice,  but 
that  all  the  German  States  should  be  bound  together  in  one 
great  political  organization  by  a  common  Constitution. 

The  movement  took  legal  form  by  the  adoption  of  several 
agreements  first  of  all  between  the  North  German  Bund  and 
the  several  South  German  States.  These  were: — 

1.  An   agreement   between   the   North    German    Bund, 
Baden,  and  Hesse  relative  to  the  founding  of  a  German  Union 
and  the  adoption  of  a  federal  Constitution,  drawn  up  at 
Versailles  in  November,  iSyo.2 

2.  A  treaty  between  the  North  German  Bund,  Baden,  and 
Hesse,  on  the  one  side,  and  Wiirttemberg,  on  the  other,  rela- 
tive to  the  acceptance  by  Wiirttemberg  of  the  Constitution  of 
the  German  Union,  drawn  up  on  the  25  November,  1870, 
together  with  the  Final  Protocol  and  the  Military  Convention 
of  the  same  date.8 

3.  A  treaty  with  Bavaria,  relative  to   the   acceptance  of 
the  Constitution  of  the  German  Union,  on  the  23  November, 
1870,  together  with  the  Final  Protocol  of  the  same  date.4 

These  treaties  contain,  first  of  all,  a  declaration  of  the  entry 
of  the  contracting  parties  into  the  North  German  Bund. 
They  then  set  forth,  as  the  condition  under  which  they  enter, 
certain  amendments  to  the  federal  Constitution,  which  seemed 
either  necessary  or  desirable  to  the  South  German  States. 

1  Delbriick,  speech  before  the  N.  D.  Reichstag,  5  December,  1870. 

J  BGBl.  p.  650.          »  Ibid.  pp.  654,  657,  658.         4  Ibid.  1871,  pp.  9,  33. 


THE   FOUNDING   OF  THE   GERMAN   EMPIRE  17 

These  amendments  were  accepted  by  the  Bund.  Bavaria, 
in  particular,  obtained  a  number  of  rights,  which  are  known 
as  the  Bavarian  " Sonderrechte." 

The  November  treaties  stipulated  that  the  general  rati- 
fication of  their  contents  should  follow  the  constitutional 
action  of  the  legislative  bodies  of  the  parties,  and  that  they 
should  go  into  effect  on  i  January,  1871,  The  consent  of 
the  Bundesrat  and  Reichstag  of  the  North  German  Bund  and 
that  of  the  legislative  assemblies  of  Wiirttero  berg,  Baden,  and 
Hesse  —  for  that  part  of  its  territory  lying  south  of  the  Main 
—  were  given  in  December,  1870.  Bavaria  delayed  a  little, 
but  finally  voted  its  assent  on  21  January,  1871.  The  ex- 
tended North  German  Bund  was  to  be  tailed  the  German 
Empire,  and  the  king  of  Prussia,  in  his  capacity  as  bearer 
of  the  praesidial  power,  was  styled  "the  German  Emperor." 

The  German  Empire,  therefore,  came  into  being  on  i  Janu- 
ary, 1871,  —  not  as  a  new  constitution,  but  as  an  exten- 
sion of  the  North  German  Bund.  For  the  situation  was  not 
identical  with  the  erection  of  the  Bund  under  the  August 
Treaty.  Then  certain  independent  States  undertook  to 
form  a  union.  Here,  however,  the  November  treaties  were 
formed  between  the  North  German  Bund,  as  a  unit,  on  the 
one  hand,  and  the  individual  South  German  States  on  the 
other.  The  bond  existing  between  the  North  German 
States  was  neither  dissolved  nor  ended,  in  order  to  the 
formation  of  the  new  State.  It  was  extended  and  somewhat 
modified.  "  While  no  legal  continuity  exists  between  the  old 
German  Confederation  and  the  North  German  Bund,  it  is 
preserved  between  the  Bund  and  the  Empire."  l  The  found- 

1  Sten.  Ber.  II.  Ausserord.  Sess.,  1870,  p.  152;  Hanel,  Studien,  I.  p.  82; 
Staatsrecht,  I.  pp.  49  ff. ;  Meyer,  Erorterungen,  p.  61;  Staatsrecht,  67,  note 
6;  Schultze,  I.  p.  172;  Mejer,  Einleitung,  pp.  330  ff. ;  Arndt,  p.  55.  For 
contrary  opinion,  see  Seydel,  Comm.  p.  30 ;  and  Riedel,  Die  Verfassung  von 
1871,  p.  77- 
c 


1 8  THE  GERMAN  EMPIRE 


ing  of  the  Empire  was  already  provided  for  in  the  Constitu- 
tion of  the  North  German  Bund. 

The  advent  of  the  South  German  States  into  the  Bund, 
and  the  change  of  the  style  of  the  State,  rendered  a  revision 
of  the  Constitution  an  absolute  necessity.  The  documents 
upon  which  the  State  rested  were  scattered  through  the  old 
Constitution  and  through  several  treaties  and  conventions 
between  the  Bund  and  the  individual  States.  It  was  neces- 
sary that  the  whole  be  brought  into  one  complete  instru- 
ment. A  draft  of  an  Imperial  Constitution  was  laid  before 
the  Reichstag  and  accepted  by  that  body  on  14  April,  1871. 
It  was  published  as  an  imperial  law  on  16  April,  1871. 
The  present  Imperial  Constitution,  therefore,  stands  on  the 
statute  books  of  Germany  as  an  imperial  law.  It  is  not  a 
contract,  nor  an  identical  State  law,  but  a  law  of  the  Em- 
pire. It  was  published,  like  any  other  imperial  law,  by  the 
same  factors  and  in  the  same  way.  "  The  Imperial  Con- 
stitution rests  upon  the  will  of  the  Empire  and  upon  it 
alone." 


CHAPTER  II 
THE  EMPIRE  AND  THE   INDIVIDUAL  STATES 

THE  German  Empire  is  composed  of  twenty-five  States, 
twenty-two  of  which  are  monarchical  in  their  organization, 
while  three  are  republican  City-states.1  Before  the  erection 
of  the  North  German  Bund,  these  States  were  sovereign  and 
independent,  and  bound  together  by  an  international  agree- 
ment into  the  German  Confederation.  At  the  time  the  North 
German  Bund  was  formed,  therefore,  the  German  people 
were  not  an  unorganized  mass  politically,  but  were  divided 
into  the  peoples  of  the  various  States,  each  of  which  had  its 
own  political  personality  and  its  own  constitutional  organiza- 
tion. This  organization  was  not  destroyed  by  the  creation  of 
the  federal  State,  but  at  the  same  time  it  did  not  remain 
unaffected  by  the  new  structure.  "  From  the  standpoint  of 
historical  speculation,  we  may  regard  the  founding  of  the 
Empire  as  an  act  of  the  German  people,  or  as  an  evolution  of 
its  political  constitution ;  the  treatment  of  the  question  from 
the  standpoint  of  constitutional  law  must  limit  itself  exclu- 
sively to  processes  which  are  legally  relevant.  Viewed  from 
this  point,  the  founding  of  the  North  German  Bund,  and  of 
the  German  Empire,  appear  not  as  an  act  of  the  German 
people,  but  as  an  act  of  the  German  States  existent  in  1867 

1  The  States  are  as  follows:  Prussia,  Bavaria,  Saxony,  Wiirttemberg, 
Baden,  Hesse,  Mecklenburg-Schwerin,  Saxe-Weimar,  Mecklenburg-Strelitz, 
Oldenburg,  Brunswick,  Saxe-Meiningen,  Saxe-Coburg-Gotha,  Saxe-Alten- 
burg,  Anhalt,  Schwartzburg-Rudolstadt,  Schwartzburg-Sonderhausen,  Wai- 
deck,  Reuss  altere  Linie,  Reuss  jiingere  Linie,  Schaumburg-Lippe,  Lippe, 
Lubeck,  Bremen,  and  Hamburg. 

19 


20  THE  GERMAN  EMPIRE 

and  1870.  All  the  acts  leading  up  to  the  erection  of  the 
federal  State  were  acts  of  the  States  as  personalities.  In 
entering  the  Bund  they  gave  up  their  sovereignty,  it  is  true, 
but  not  their  existence  as  States.  This  legal  individuality 
continued  and  became  the  foundation  of  the  joint  personal- 
ity of  the  federal  State.  The  members  of  the  Empire, 
therefore,  are  not  the  individual  citizens  of  the  Empire,  nor 
are  these  citizens  the  bearers  of  the  imperial  power.  The 
members  of  the  Empire  are  rather  the  several  States.  The 
German  Empire  is  not  a  juristic  person  composed  of  fifty-six 
million  members,  but  of  twenty- five  members."  l 

The  German  Empire  is  not  a  league  of  princes.  It  is  a 
State  constructed  out  of  States.  In  becoming  a  member  of 
the  Bund  each  several  State  gave  up  its  sovereignty,  receiv- 
ing therefor,  as  Bismarck  expressed  it,  a  "  share  in  the  joint 
sovereignty  of  the  Empire."  Since  there  can  be  no  limita- 
tion of  sovereignty  and  no  division  of  it,  these  States  are  not 
sovereign  "in  their  own  sphere."  But  the  individual  State 
takes  a  part  in  forming  the  power  that  stands  over  it.  The 
German  States  are  not  subjected  to  the  domination  of  any 
one  of  them,  nor  to  any  foreign  sovereign,  but  rather  to  a 
corporate  State  builded  out  of  themselves.  "The  German 
States  are  as  a  totality  sovereign."  Sovereignty,  according 
to  the  German  jurists,  is  not  an  essential  element  of  a  State. 
It  may  constitute  the  basis  of  recognition  in  international  law, 
but  from  the  standpoint  of  constitutional  law  it  is  an  insuffi- 
cient test  of  statehood.  The  true  mark  of  a  State  consists 
in  its  possession  of  original  and  underived  power.  This 
mark  belongs  to  each  of  the  German  States.  There  is  a 
large  field  in  which  the  State  is  left  free  to  govern  itself. 
The  powers  of  the  Empire  are  specifically  defined.  It  may 
enlarge  those  powers,  but  until  it  does  the  State  enjoys  a 

1  Laband,  I.  p.  91. 


THE  EMPIRE  AND  THE  INDIVIDUAL  STATES  21 

free  hand.  This  independence  is  not  granted  to  it  by  the 
Empire.  It  forms  no  part  of  the  imperial  powers.  It  is 
State  power,  pure  and  simple.  The  State  wields  it  as  of  right 
and  not  by  concession.  It  existed  before  the  founding  of 
the  Empire.  It  survives  that  act.  It  is  that  autonomous 
area  of  power  belonging  to  the  State  which  has  not  yet  been 
invaded  by  the  Empire.  The  sovereign  power  lies  with  the 
Empire  and  comes  to  expression,  not  in  the  Kaiser,  who  is 
in  no  sense  the  "monarch"  of  Germany,  but  in  the  "totality 
of  the  allied  governments"  regarded  as  a  single  personality, 
—  in  other  words,  in  the  Bundesrat. 

By  Art.  4  of  the  Imperial  Constitution  the  Empire  is 
given  the  power  of  supervision  and  legislation  with  reference 
to  a  number  of  matters  which  affect  more  or  less  the  general 
interests  of  the  country.  In  all  such  matters  the  action  of 
the  States  is  excluded  and  their  power  is  renounced  in  favor 
of  the  Bund.  The  field  covered  by  imperial  legislation  and 
oversight  is  quite  extensive,  and  includes  the  following 
subjects :  — 

(1)  Regulations   relating   to  free  migration;  matters  of 
domicile  and  settlement;   right  of  citizenship;  matters  per- 
taining to  passports  and  to  the  surveillance  of   foreigners; 
industrial  activity,  including  insurance  matters,  so  far  as 
they  are   not  provided  for  in  Art.  3  of   the    Constitution; 
and  matters  relating  to  colonization  and  emigration  to  foreign 
lands.     In  Bavaria,  however,  matters  of  domicile  and  settle- 
ment are  excluded. 

(2)  Legislation  pertaining  to  customs  duties,  commerce, 
and  the  taxes  to  be  applied  for  imperial  purposes. 

(3)  The  regulation  of  the  system  of  weights  and  measures 
and  of  the  coinage,  in  addition  to  the  laying  down  of  prin- 
ciples for  the  emission  of  funded  and  unfunded  paper  money. 

(4)  General  banking  regulations. 


22  THE  GERMAN   EMPIRE 

(5)  Patents  and  inventions. 

(6)  The  protection  of  intellectual  property. 

(7)  The  organization  of  a  general  system  of  protection  for 
German  trade  in  foreign  countries,  for  German  navigation 
and  for  the  flag  on  the  high  seas,  together  with  the  arrange- 
ment of  a  system  of  general  consular  representation  to  be 
maintained  by  the  Empire. 

(8)  Railway  matters  —  with  the  reservations  as  applied 
to  Bavaria  in  Art.  46  —  and  the  construction  of  roads  and 
waterways  in  the  interest  of  public  defence  and  of  general 
intercourse. 

(9)  Rafting  and  navigation  upon  the  waterways  common 
to  several  States,  and   the   condition  of   such  waterways, 
together  with  the  imposition  of  river  and  other  water  dues, 
likewise  the  regulation  of  signals  used  in  navigation.1 

(10)  Postal   and    telegraph   matters  —  in    Bavaria    and 
Wurttemberg,  however,  only  in  accordance  with  the  pro- 
visions of  Art.  52. 

(n)  Regulations  pertaining  to  the  mutual  execution  of 
judgments  in  civil  matters  and  the  fulfilment  of  requisitions  in 
general. 

(12)  The  authentication  of  public  documents. 

(13)  General  legislation  with  reference  to  the  whole  domain 
of  civil  and  criminal  law,  and  of  legal  procedure.2 

(14)  The  military  establishment  of  the  Empire  and  the 
navy. 

(15)  The  regulation  of  the  medical  and  veterinary  police. 

(16)  The  regulation  of  the  press  and  the  right  of  associa- 
tion. 

All  these  matters  are  regulated  by  imperial  legislation,  and 
are  accordingly  withdrawn  from  the  sphere  of  State  legis- 
lative activity. 
1  Amendment  added  3  March,  1873.        *  Amendment  of  20  December,  1873. 


THE  EMPIRE  AND  THE  INDIVIDUAL  STATES  23 

What,  then,  remains  as  the  exclusive  field  of  State  legisla- 
tion? Every  State  has  the  absolute  control  of  its  own  or- 
ganization. It  determines  the  laws  of  succession  and  settles 
questions  which  arise  over  its  internal  administration  in  accord- 
ance with  its  own  constitution.  It  has  the  right  to  determine 
what  that  constitution  shall  be,  subject  only  to  the  condition 
that  there  shall  be  nothing  in  its  organic  law  that  is  contrary 
to  the  Imperial  Constitution.  It  makes  its  own  budget  and 
its  legislative  bodies  enact  laws  governing  a  large  part  of  its 
internal  affairs.  Police  regulations  touching  public  meetings ; 
fire  and  building  regulations ;  water  rights ;  road  laws,  so  far 
as  these  do  not  fall  within  the  competence  of  the  Empire; 
matters  of  ordinary  credit  not  represented  by  the  banks ;  the 
regulation  of  the  domestic  agricultural  situation ;  the  breeding 
of  cattle ;  forestry ;  mines ;  hunting  and  fishing ;  the  relation  of 
church  and  state ;  the  control  of  public  instruction  —  all  these 
matters  fall  within  the  competence  of  the  individual  State, 
and  are  provided  for  by  State  legislation.  In  general  it  may 
be  said,  that  where  the  Empire  has  not  legislated  on  any  sub- 
ject, and  has  not  the  competence  so  to  legislate,  that  field  is 
left  free  to  State  legislation.  Where,  however,  both  State 
and  Empire  have  legislated  upon  a  matter,  the  federal  law 
takes  the  precedence. 

Turning  to  the  executive  sphere,  we  find  a  wholly  different 
principle  at  work.  In  the  division  of  competence  between  the 
Empire  and  the  several  States,  a  strong  unitary  tendency  is 
seen.  In  matters  of  military  control,  naval  affairs,  and  of 
justice,  the  legislative  authority  is  taken  wholly  from  the  States 
and  is  vested  in  the  Empire.  In  finance  about  two-thirds, 
and  in  affairs  touching  the  internal  administration  of  the  coun- 
try about  one-half,  are  removed  from  State  legislation.  In 
the  carrying  out  of  the  laws,  however,  the  federalistic  prin- 
ciple prevails.  Aside  from  the  postal  and  telegraph  admin- 


24  THE   GERMAN   EMPIRE 

istration,  which  is  strictly  imperial  down  to  the  slightest  detail, 
the  Empire  depends  upon  the  organs  of  the  States  for  the 
execution  of  its  laws.  It  does  not  attempt  to  apply  through 
its  own  officials  the  laws  it  has  enacted,  but  looks  to  the 
officials  of  the  individual  States  for  the  execution  of  those  laws 
under  imperial  supervision.  Imperial  customs  and  imperial 
taxes  are  not  levied  by  the  officials  of  the  Empire,  but  by  State 
officials.  The  tariff  and  tax  officials  are  State  authorities. 
The  jurisdiction  of  the  courts  is  fundamentally  State  Juris- 
diction. The  judgments  are  rendered  in  the  name  of  the  State 
and  not  hi  the  name  of  the  Empire.  The  police  officials 
who  carry  out  the  laws  and  regulations  governing  industry 
and  other  imperial  ordinances  are  in  the  service  of  the  State 
primarily,  and  act  in  the  capacity  of  imperial  organs.  In 
short,  the  State  carries  on  the  imperial  business  according  to 
norms  which  the  Empire  has  laid  down. 

In  matters  pertaining  to  foreign  affairs,  however,  as  well 
as  in  regard  to  the  navy  and  fortifications,  the  control  of  the 
Empire  is  quite  supreme.  Here  the  Empire  exercises  not 
alone  the  legislative  authority,  but  the  administrative  as 
well.  The  ambassadors  to  foreign  lands  are  imperial  officers, 
while  the  consuls  and  officials  in  the  protectorates  are  imperial 
appointees.  The  naval  organization  and  the  administration 
of  the  imperial  fortifications  are  in  the  hands  of  imperial 
organs.  Both  the  commanding  admiral  and  the  Secretary  of 
State  for  the  Navy  hold  office  under  the  Empire,  not  under 
Prussia,  and  the  governors  of  the  naval  fortifications  and  the 
commandants  stand  in  the  service  of  the  Kaiser. 

With  regard  to  the  army  there  is  a  dual  arrangement.  The 
authority  of  the  Empire  goes  farther  than  the  mere  right  of 
oversight.  It  regulates  directly  all  the  activity  of  the  officers 
in  command.  On  the  other  hand,  the  subordinate  officers  are 
under  the  control  of  the  several  States  and  the  whole  system 


THE  EMPIRE  AND  THE  INDIVIDUAL  STATES  25 

of  military  organization,  instruction,  religious  care,  and 
justice  is  left  in  their  hands.  The  army  inspectors  are  im- 
perial, the  commanding  generals  and  the  ministers  of  war 
are  State  officials. 

So  far  as  the  execution  of  the  laws  is  concerned,  the  powers 
of  the  individual  States  exceed  that  of  the  Empire,  and  in  the 
division  of  competence  the  federal  principle  is  strongly  carried 
out.  The  Empire  has  but  a  fragment  of  the  general  executive 
powers,  save  in  the  matter  of  foreign  affairs.  It  is  practically 
excluded  from  the  judicial,  financial,  and  internal  administra- 
tion. In  the  German  Empire  we  have  a  strongly  Unitarian 
power  to  legislate  joined  to  a  strongly  federal  power  to  execute. 

The  Empire  is  not  empowered  to  exclude  any  individual 
State  from  membership  in  the  Bund.  It  cannot  alienate  even 
a  portion  of  it  from  the  imperial  domain,  convert  it  into  a 
Territory,  unite  it  with  another  State,  divide  it,  or  change  its 
vote  or  relative  weight  in  the  councils  of  the  Empire.  On  the 
other  hand,  no  State  has  any  right,  on  any  ground,  to  with- 
draw itself  from  the  union.  For  every  act  detrimental  to  the 
interests  of  the  State  there  is  always  legal  recourse.  Nor 
may  any  State  modify  or  diminish  by  any  legal  transaction 
the  organic  rights  and  duties  of  membership  in  the  Bund, 
or  by  a  unilateral  act  change  the  conditions  upon  which  those 
rights  and  duties  rest.  No  alliance  or  agreement  may  be  made 
with  a  foreign  land,  or  between  the  States  themselves,  which 
does  violence  to  any  Article  in  the  Imperial  Constitution  or 
contravenes  an  imperial  law.  Where  in  any  State  the  State 
constitution,  or  the  House  Laws  of  the  reigning  family,  or 
treaties  made  by  the  State  or  between  families  of  reigning 
monarchs,  regulated  matters  coming  under  the  direct  super- 
vision of  the  Empire  at  the  time  of  the  founding  of  the  Bund, 
the  stipulations  and  provisions  of  the  Imperial  Constitution 
hold  and  exclude  the  operation  of  such  enactments. 


26  THE  GERMAN  EMPIRE 

The  competence  of  the  Empire  has  suffered  a  limitation, 
however,  in  certain  directions,  through  the  reserved  rights,  or 
"Sonderrechte,"  which  were  made  the  condition  on  which  the 
South  German  States  entered  the  Union.  Baden  reserves 
the  taxation  of  brandies  and  beers  of  domestic  origin  to  the 
State  legislation,  while  the  revenue  therefrom  flows  into  the 
State  treasury.  The  same  reservation  is  made  by  Wiirt- 
temberg,  together  with  administration  of  the  post  and  tele- 
graph within  her  borders.  Certain  military  reservations  with 
reference  to  Wiirttemberg  are  considered  in  their  proper  place 
under  the  military  organization  of  the  Empire.  In  Bavaria 
certain  regulations  touching  the  right  of  domicile  and  of 
settlement  are  reserved,  the  regulation  of  the  postal  and 
telegraphic  arrangements  are  identical  with  those  of  Wiirt- 
temberg practically,  the  taxation  of  domestic  brandy  and  beer 
is  made  a  matter  for  State  legislation,  certain  railroad  exemp- 
tions are  granted,  certain  insurance  laws  may  be  passed  only 
with  the  permission  of  Bavaria,  and  an  extensive  reservation 
is  made  with  respect  to  the  military  arrangements.  There 
are  certain  reserved  rights  or  special  rights  which  touch  the 
organization  of  the  Empire.  Prussia  has  the  right  of  prae~ 
sidium  with  all  the  rights  accruing  therefrom.  Her  king  is 
German  Kaiser.  Bavaria  has  an  advantage  by  being  granted 
six  votes  in  the  Bundesrat,  instead  of  four,  to  which  she  was 
entitled  in  the  old  German  Bund.  She  has  a  permanent  place 
on  the  imperial  Committee  for  the  Army  and  Fortifications 
in  the  Bundesrat,  and  the  chairmanship  of  the  Committee  on 
Foreign  Affairs.  She  has  also  the  right  of  substitute  in  the 
chairmanship  of  the  Bundesrat.  Should,  for  any  reason,  the 
imperial  ambassador  be  hindered  from  acting,  the  Bavarian 
ambassador  may  represent  him.  Moreover,  Wiirttemberg 
and  Saxony  have  each  a  permanent  seat  on  the  Committee 
on  Army  and  Fortifications  and  on  Foreign  Affairs.  These 


THE  EMPIRE  AND  THE  INDIVIDUAL  STATES  2? 

rights  may  not  be  taken  away  from  the  several  States 
holding  them  without  the  consent  of  the  States  themselves. 

If  a  State  becomes  recalcitrant  in  the  exercise  of  its  duties, 
or  refuses  to  perform  its  part  in  the  general  obligation  laid 
upon  every  member  of  the  Bund,  it  may  be  compelled  to  a  per- 
formance of  its  duty  by  means  of  what  is  known  as  an  "exe- 
cution"—  a  show  of  armed  force.  The  federal  army  may 
be  mobilized,  in  whole  or  in  part,  against  the  offending  State. 
The  decision  as  to  the  wisdom  or  necessity  of  such  a  move 
is  determined  by  the  Bundesrat.  The  execution  is  carried  out 
by  the  order  of  the  Kaiser. 

According  to  Art.  78  of  the  Constitution,  changes  and 
amendments  to  the  Constitution  may  be  made  in  the  way 
of  ordinary  legislation.  An  increased  majority  is  required 
for  such  amendatory  legislation  in  the  Bundesrat,  fourteen 
negative  votes  rejecting  the  measure.  It  will  be  seen  that 
the  Empire  is  competent  to  enlarge  its  own  competence  — 
the  Kompetem-Kompetenz  of  the  German  jurists  —  and  to 
widen  the  sphere  of  its  legislation.  By  means  of  ordinary 
legislation  it  may  extend  the  limits  of  its  legislative  and 
supervisory  activity  as  set  forth  in  Art.  4  of  the  Constitution, 
increase  very  materially  the  number  of  matters  now  brought 
within  the  sphere  of  imperial  affairs,  and  assume  control  of 
what  now  it  touches  not  at  all  or  only  indirectly. 


CHAPTER  III 
THE  KAISER1 

IN  the  organization  of  the  North  German  Bund  three  factors 
had  to  be  considered:  the  allied  governments,  the  German 
people  as  a  totality,  in  whose  breast  the  sentiment  of  nationality 
had  for  long  been  growing,  and  the  Prussian  State,  which  had 
done  the  lion's  share  hi  making  the  German  nation  a  concrete 
fact.  In  the  Constitution  of  the  North  German  Bund  each  of 
these  factors  found  its  expression  and  place.  The  allied 
governments  were  given  the  Bundesrat,  the  German  people 
were  given  the  Reichstag,  while  Prussia  received  recognition 
mainly  through  the  powers  with  which  her  king  was  invested. 
The  title  "Kaiser"  nowhere  appears  in  the  Constitution  of 
the  North  German  Bund.  Nevertheless  all  the  powers  which 
the  Kaiser  enjoys  under  the  Imperial  Constitution  were  found 
hi  the  Constitution  of  the  North  German  Bund,  though  under 
three  different  designations.  The  larger  number  of  these 
powers  were  granted  to  the  Bundespraesidium,  i.e.  to  the 
king  of  Prussia  as  chief  magistrate  of  the  nation.  In  this 
capacity  he  summoned,  opened,  prorogued,  and  closed  the 
Bundesrat  and  Reichstag,  engrossed  and  published  the  federal 
laws,  appointed  and  dismissed  the  chancellor,  as  well  as  the 

'See  Held,  Das  Kaiserthum  als  Rechtsbegriff,  1879;  Laband,  I.  pp.  191 
ff. ;  Meyer,  Staatsr.  p.  127 ;  Hanel,  Studien,  II.  pp.  56  ff. ;  Schulze,  Lehrb.  d.  d. 
Slaalsr.  II.  pp.  36.  ff. ;  Von  Ronne,  Staatsr.  I.  pp.  5  ff. ;  Zorn,  Staatsr.  I.  p.  7 ; 
Bornhak,  Die  verfassungsrechlliche  Stellung  d.  D.  Kaiserthums,  Arch.  /.  d. 
iiff.  R.  VIII.  pp.  425  ff. ;  Arndt,  Komm.  pp.  124  ff. ;  Fischer,  Das  Recht  d.  D. 
Kaisers,  Berlin,  1895;  Laband,  Das  D.  Kaiserthum,  Strassburg,  1896; 
Binding,  Die  rechtl.  Stellung  d.  Kaisers,  Dresden,  1898;  Von  Jagemann, 
Die  d.  Reichsverfassung,  pp.  99  ff.,  Heidelberg,  1904. 

28 


THE  KAISER  29 


federal  officials,  and  supervised  all  branches  of  the  federal 
administration.  Further,  a  most  complete  military  authority 
was  granted  to  the  king  of  Prussia  as  Bundesfeldherr,  or 
commander-in-chief  of  the  federal  armed  forces :  the  supreme 
command  of  the  federal  army  in  war  and  peace,  the  supervision 
of  the  troops  with  respect  to  their  equipment  and  readiness 
for  effective  service,  the  determination  of  the  active  strength 
of  the  army  and  the  division  of  it  into  various  military  units, 
the  power  to  erect  fortifications  within  the  federal  territory 
and  to  appoint  members  of  the  Bundesrat  Committee  on  the 
Army  and  Fortifications,  and  the  authority  to  carry  out  a 
federal  "execution"  as  well  as  to  declare  any  part  of  the 
territory  in  a  "state  of  siege."  Finally,  the  supreme  com- 
mand of  the  federal  navy,  together  with  the  regulation  of  its 
organization  and  composition,  was  granted  to  the  "King  of 
Prussia"  by  the  Constitution  of  the  North  German  Bund. 

This  triple  division,  Bundespraesidium,  Bundesfeldherr,  and 
king  of  Prussia,  did  not  vanish  with  the  conclusion  of  the 
treaties  with  the  South  German  States.  While  Art.  u, 
Cl.  i,  of  the  Constitution  published  31  December,  1870, 
recognized  the  new  title,  "German  Kaiser,"  *  and  stipulated 
that  the  king  of  Prussia,  as  Praesidium  of  the  Bund,  should 
bear  that  title  henceforth,  yet  the  old  expressions  indicative 
of  a  threefold  position  of  the  king  of  Prussia  still  remained 
in  the  body  of  the  instrument.2  By  the  revision  of  16  April, 
1871,  the  word  "Kaiser"  was  everywhere  made  to  take  the 
place  of  old  expressions  and  the  triple  designation  was  elimi- 
nated.3 

1  Das  Praesidium  des  Bundes  steht  dent  Konig  von  Preussen  zu,  welcher 
den  Namen  Deutscher  Kaiser  juhrt.     For  this  draft  of  the  31  December, 
1870,  see  BGBl.  1870,  p.  627;  also  found  in  Triepel,  p.  85. 

2  Compare  Arts.  19,  53,  62-68  of  the  Constitution  of  31  December,  1870, 
with  the  same  Articles  of  the  Constitution  of  the  North  German  Bund. 

3  In  the  present  Constitution,  the  word  "  Praesidium  "  is  retained  in  Art.  5, 


3O  THE  GERMAN  EMPIRE 

The  substitution  of  the  title  "Kaiser"  and  the  revival  of 
the  imperial  dignity  effected  no  constitutional  change  what- 
ever in  the  relation  of  the  king  of  Prussia  to  the  other  States 
and  monarchs  of  the  Bund.  It  invested  him  with  no  powers 
which  he  did  not  before  possess,  save  the  purely  personal 
right  to  the  specific  title  and  to  the  imperial  arms  and  stand- 
ard. The  adoption  of  the  title  "Kaiser"  in  the  Constitu- 
tion created  no  new  political  institution.  "The  definition  of 
the  Bundespraesidium  has  not  been  changed  by  connecting 
it  with  the  imperial  title.  From  the  historical  events  which 
led  to  the  restoration  of  the  imperial  dignity,  from  the  Motiven 
and  explanation  which  accompanied  the  draft  of  the  Consti- 
tution in  its  present  wording,  and  especially  from  Art.  n 
of  the  Constitution  itself,  one  draws  the  sure  conclusion  that 
the  Kaisership  is  fully  and  completely  identical  with  the 
Bundespraesidium  and  that,  apart  from  the  title  and  the 
insignia  corresponding  to  it,  it  contains  no  rights  other  than 
the  praesidial  rights."1 

The  substitution  of  the  word  "Kaiser"  for  the  words 
"Bundespraesidium,"  "Bundesfeldherr",  and  "King  of 
Prussia,"  involved  no  restoration  of  the  ancient  imperial 
institution,  no  setting  up  anew  of  the  old  Kaisenvurde.  The 
legal  continuity  between  the  old  imperial  dignity  and  the 
new  can  no  more  be  maintained  than  the  legal  continuity 
between  the  old  Empire  that  tumbled  into  dust  in  1806  and 
the  new  Empire  that  arose  in  1871.  The  time  between  those 
two  dates  is  no  mere  interregnum.  Yet  as  Schulze  remarks,2 
"the  historical  connection  between  both  dignities  cannot  be 
ignored.  Without  the  great  memories  which  fasten  them- 

Cl.  2 ;  Art.  7,  Cls.  2  and  3 ;  Art.  8,  Cl.  2 ,  and  Art.  37.  Fischer  holds  that  in  these 
articles  the  expression  refers  not  to  the  Bundes-praesidium  but  to  the  Bundes- 
rats-praesidium.  See  op.  cit.  p.  24. 

1  Laband,  I.  p.  195.  3  Lehrbuch,  II.  pp.  36,  37. 


THE  KAISER  31 


selves  to  the  imperial  history  of  the  Middle  Ages,  the 
erection  of  the  German  Empire  would  have  been  impos- 
sible." 

The  restoration  of  the  Kaiser  title  was  a  political  stroke  of 
Bismarck's.  The  purpose  lying  back  of  his  insistence  on  the 
assumption  of  the  imperial  dignity  by  Wilhelm  may  be  gath- 
ered from  Bismarck's  own  words:  "The  assumption  of  the 
title  'Kaiser'  by  the  king,  on  the  expansion  of  the  North 
German  Confederation  into  the  Empire,  was  a  political  ne- 
cessity, because,  recalling  the  days  when  it  had  a  greater  sig- 
nificance legally  though  less  importance  in  actual  fact,  it 
became  an  element  making  for  unity  and  centralization.  And 
I  was  convinced  that  the  pressure  solidifying  our  imperial  in- 
stitutions would  be  more  permanent,  the  more  the  Prussian 
wearer  of  the  imperial  title  should  himself  avoid  that  danger- 
ous striving  which  marked  the  earlier  history  of  Germany  — 
the  striving  on  the  part  of  our  dynasty  to  flaunt  its  own  pre- 
eminence in  the  face  of  the  other  dynasties.  King  William  I. 
was  not  free  from  this  inclination,  and  his  resistance  to  the 
title  was  not  disconnected  from  his  desire  to  do  just  this 
thing  —  to  call  forth  a  recognition  of  the  superior  prestige 
of  Prussia's  crown  over  the  Kaiser  title."  The  assump- 
tion of  the  Kaiser  title  made  it  impossible  henceforth 
to  think  of  the  Empire  as  nothing  but  an  "expanded 
Prussia." 

In  this  movement  for  the  restoration  of  the  Kaiser  title, 
there  was  no  slightest  notion  of  elevating  the  king  of  Prussia 
to  the  position  of  monarch  of  Germany.  Ludwig  of  Bavaria 
made  this  perfectly  clear  in  his  letter  to  Wilhelm  suggesting 
the  adoption  of  the  title  "German  Emperor."  "I  have 
proposed  to  the  German  princes,"  he  wrote,  "to  join  me  in 
urging  your  Majesty  to  assume  the  title  'German  Emperor,' 
in  connection  with  the  exercise  0}  the  praesidial  rights  of  the 


32  THE  GERMAN  EMPIRE 

Federation"  1  The  new  imperial  dignity  was  to  be  no  in- 
vestiture of  the  king  of  Prussia,  as  such,  with  authority  over 
the  other  German  princes.  It  was  to  be  no  mere  extension  of 
Prussian  power.  It  did  not  aim  to  give  the  Prussian  State  a 
hegemonial  position  in  the  Empire.  In  fact,  it  meant  the 
very  reverse,  "  the  giving  up  of  the  hegemonial  idea,  and  the 
union  of  all  the  praesidial  rights  appertaining  to  the  Prussian 
crown,  outside  the  sphere  of  the  Bundesrat,  including  the 
power  over  the  army  and  navy,  into  a  single  imperial  office, 
the  Kaisership."2  It  may  be  said  that  the  imperial  dignity 
stands  for  the  nationalizing  of  the  praesidial  power.  The 
rights  which  the  Kaiser  exercises  in  the  matter  of  govern- 
ment are  not  in  any  sense  manifestations  of  the  power  of  the 
Prussian  State.  They  are,  rather,  the  legal  functions  of  an 
imperial  organ,  attached,  by  the  organic  law  of  the  Empire, 
to  the  Prussian  crown. 

The  German  Empire  is  a  true  State,  but  it  is  not  a  monar- 
chy. Sovereignty  does  not  rest  with  the  Kaiser,  but  with  the 
totality  of  the  allied  governments.  This  union  of  the  allied 
governments  finds  its  expression,  not  in  the  Kaiser,  but  in  the 
Bundesrat.  The  Bundesrai,  therefore,  is  the  supreme  organ 
of  the  Empire.  It  must  not  be  concluded  that  the  Kaiser  is 
subordinated  to  the  Bundesrat.  Whatever  powers  the  Kaiser 
exercises  in  the  Empire,  he  exercises  in  the  name  of  the  Em- 
pire, not  in  the  name  of  the  Bundesrat  or  of  the  allied  govern- 
ments.3 None  of  the  imperial  powers  is  derived  from  the 
Bundesrat.  Certain  acts  of  the  Kaiser  are  limited  by  the  coop- 
eration of  the  Bundesrat,  but  in  no  case  can  the  Kaiser  be 
regarded  as  an  organ  of  that  body.  As  an  organ  of  the  Em- 

1  See  Sten.  Ber.  d.  Nordd.  Rtags.  II.  Ausserord.  Sess.,  1870,  p.  67.  Also 
speech  of  Delbruck,  8  December,  Sten.  Ber.  II.  Ausserord.  Sess.,  1870, 
p.  167.  Cf.  Hanel,  Studien,  II.  p.  29,  note  i. 

J  Anschiitz,  Staatsr.  in  Kohkr-Holzendorjf,  p.  547. 

1  RVerj.  Art.  17.    Note  exceptions  mentioned  below  in  the  text 


THE  KAISER  33 


pire,  the  Kaiser  is  coordinate  with  the  Bundesrat,  not  sub- 
ordinate to  it. 

Nevertheless,  the  Kaiser  is  not  monarch  of  the  Empire, 
though  he  is  vested  with  powers  usually  found  possessed  only 
by  monarchical  rulers.  The  Kaiser  cannot  assume  any 
authority  in  the  Empire  as  of  his  own  right.  Whatever 
power  he  possesses  as  Kaiser,  he  possesses  by  virtue  of  author- 
ity granted  him  by  the  Constitution  or  by  laws  made  in  pur- 
suance thereof.  The  State  power  of  the  Empire  does  not 
centre  in  him.  His  powers  are  all  derivative,  not  original. 
In  case  of  doubt,  the  presumption  is  against  him.  The  reverse 
is  true  in  a  monarchy.  On  the  other  hand,  the  Kaiser  is  not 
President  of  the  Empire,  in  the  sense  in  which  the  word 
"President"  is  understood  in  the  United  States  and  in  France. 
He  is  neither  elected  or  appointed.  He  is  responsible  to  no 
higher  authority.  He  is  not  the  "subject"  of  any  sovereign. 
He  may  not  be  removed  by  any  judicial  procedure.  He  oc- 
cupies his  position  by  reason  of  his  holding  the  Prussian 
crown,  since  the  Constitution  has  declared  that  the  chief 
magistracy  of  the  Empire  shall  belong  to  the  Prussian  crown. 
His  occupancy  of  the  imperial  position,  then,  depends  upon  his 
right  to  the  crown  of  Prussia,  under  the  Prussian  Constitu- 
tion. Indirectly,  therefore,  he  may  be  said  to  hold  the  prae- 
sidial  position  in  his  own  right. 

It  has  been  stated  above  that  the  powers  exercised  by  the 
Kaiser  are  exercised  in  the  name  of  the  Empire.  There  are 
two  exceptions  to  this  principle.  Both  these  exceptions,  as 
Anschiitz  observes,1  refer  to  the  relation  sustained  to  the 
Reichstag  and  indicate  that  it  is  not  the  Kaiser,  but  the 
Bundesrat,  that  is  to  be  thought  of  as  possessing  the  imperial 
governmental  authority  over  against  that  body.  The  first 
of  these  exceptions  is  seen  in  the  opening  and  closing  of  the 

1  Anschiitz,  op.  cit.  p.  548. 


34  THE  GERMAN  EMPIRE 

Reichstag,  sovereign  rights  which,  according  to  Art.  12 
of  the  Imperial  Constitution,  are  handed  over  to  the  Kaiser 
with  no  instructions  as  to  the  ceremonial  connected  with  the 
function,  but  which,  according  to  a  fixed  practice,  are  carried 
out  "in  the  name  of  the  allied  governments."  The  second 
exception  is  in  the  transmission  of  bills,  passed  by  the 
Bundesrat,  to  the  Reichstag.  This  is  done  "hi  the  name  of 
the  Kaiser."  The  act,  however,  is  purely  ministerial.  The 
Kaiser  acts  simply  as  an  administrative  of  the  Bundesrat 
in  this  connection.  These  two  exceptions  do  not  in  any  way 
alter  the  position  of  the  Kaiser  as  an  immediate  organ  of 
the  Empire.  They  are  simply  the  exceptions  which  prove  the 
rule.  The  principle  is  well  stated  by  Laband:  "When  the 
Kaiser  acts  for  the  Empire  or  when  he  issues  declarations  of 
the  will  of  the  Empire,  he  does  not  do  so  in  his  own  name,  but 
in  the  name  of  the  Empire.  When  the  subject  of  the  im- 
perial power  conies  into  consideration  as  over  against  the 
Reichstag,  i.e.  in  the  constitutional  relation  of  the  organs  of 
the  Empire  to  one  another,  he  acts  hi  the  name  of  the  allied 
governments."  l 

It  is  at  once  apparent  that  the  Kaiser  occupies  a  unique 
position  in  the  world  of  political  institutions.  No  definition 
which  might  exhaust  the  qualities  and  characteristics  of  other 
organs  in  any  other  existing  government  would  serve  to  depict 
the  Kaiser.  He  refuses  to  be  classified  with  other  rulers  of 
constitutional  States.  The  character  of  his  position  is  com- 
posite rather  than  simple.  He  is  neither  monarch  nor  presi- 
dent, yet  he  exhibits  elements  of  both.  The  Kaisership  may, 
perhaps,  be  defined  in  broad  terms  as  an  immediate  organ  of 
the  Empire,  an  organ  of  such  a  sort  that  it  must  be  set  in  a 
class  by  itself. 

Beyond  the  single  statement  in  Art.  n,  to  the  effect  that 

1  Laband,  I.  p.  196.    See  also  Seydel,  Comm.  p.  126. 


THE  KAISER  35 


the  king  of  Prussia,  whoever  he  may  be,  is  German  Emperor, 
the  Imperial  Constitution  makes  no  attempt  to  settle  the 
question  of  succession  to  the  imperial  dignity.  The  pro- 
visions of  the  Prussian  Constitution  of  31  January,  1850, 
with  respect  to  the  order  of  succession  to  the  Prussian  throne 
are  therefore  decisive  of  the  question  of  succession  to  the  Kai- 
sership.  In  other  words,  there  is  an  indissoluble  union  be- 
tween the  Prussian  crown  and  the  Kaisership.  He  who  is 
king  of  Prussia  is  ipso  facto  German  Emperor.  Apart  from 
the  Prussian  crown  the  imperial  dignity  does  not  exist.  It 
cannot  be  either  acquired  or  laid  down,  nor  can  its  functions 
be  performed,  independently  of  the  Prussian  crown.  It  is, 
as  Laband  and  Meyer  put  it,  an  accessorium  of  the  Prussian 
crown.  For  this  reason  the  Imperial  Constitution  lays  down 
no  norms  for  regulating  in  any  wise  the  matter  of  succession. 
To  attempt  to  do  so  by  law  would  involve  an  amendment  of 
Art.  ii.  The  imperial  dignity  follows  ipso  jure  ('.he  Prus- 
sian crown. 

The  whole  question  of  succession,  therefore,  is  regulated  by 
Arts.  53-58  of  the  Prussian  Constitution.  According  to  the  pro- 
visions therein  made,  the  crown  of  Prussia  descends  by  agnatic 
succession  in  the  Hohenzollern  House  by  primogeniture. 
The  king  attains  his  majority  at  the  age  of  eighteen. 
He  takes  a  solemn  oath  in  the  presence  of  both  Chambers  to 
maintain  inviolate  the  Constitution  of  Prussia  and  to 
rule  in  accordance  with  its  provisions  and  with  the  laws.  The 
assumption  of  the  title  and  powers  as  well  as  of  the  rights  of 
the  crown  does  not  depend  on  his  taking  the  oath.  While  a 
refusal  to  take  oath  would  be  a  serious  breach  of  the  Consti- 
tution, yet  such  refusal  or  an  omission  to  take  the  oath  without 
urgent  grounds  would  draw  after  them  no  legal  results.  He 
could  not  be  punished  with  the  loss  of  his  crown,  nor  could 
his  act  be  construed  as  a  renunciation  of  the  throne.  Just 


36  THE  GERMAN  EMPIRE 

as  little  is  it  to  be  assumed  that  the  exercise  of  the  right  to 
rule  is  suspended  until  the  oath  is  taken.  No  further  oath, 
swearing  obedience  to  the  Imperial  Constitution,  is  required. 
A  refusal  to  take  the  Prussian  oath  on  succeeding  to  the 
Prussian  throne  would  be  a  matter  of  Prussia's  own  internal 
affairs  and  would  have  no  legal  effect  whatever  so  far  as  the 
Empire  is  concerned.1 

The  determination  of  the  question:  Who  is  German 
Kaiser?  rests  absolutely  upon  the  determination  of  the  ques- 
tion :  Who  is  King  of  Prussia  ?  In  the  solution  of  this  latter 
question  the  Empire  has  no  voice  whatever.  The  Empire, 
therefore,  has  no  voice  in  the  decision  as  to  who  shall  be 
Kaiser.  This  does  not  mean  that  the  constitutional  law  of 
Prussia  extends  to  the  Empire,  or  that  the  organs  of  the  Prus- 
sian State  influence  imperial  affairs  in  a  legal  way.  As 
Laband  observes,2  the  provisions  of  the  Prussian  Constitu- 
tion with  respect  to  succession  and  to  the  regency  apply  only 
to  Prussia.  The  Prussian  Landtag  and  the  Prussian  Ministry 
act  only  for  Prussia.  The  erection  of  a  regency  in  Prussia 
is  exclusively  an  action  of  the  Prussian  State.  But  the 
imperial  law  connects  the  acquisition  of  the  imperial  title 
with  the  acquisition  of  the  Prussian  crown,  by  force  of  an 
objective  legal  principle  whose  operation  is  wholly  withdrawn 
from  the  sphere  in  which  the  Prussian  Landtag  exercises  its 
will,  and  at  the  same  time  takes  place  without  any  act  of  will 
on  the  part  of  the  Bundesrat  and  Reichstag.  The  legal 
interest  of  the  Empire  is  limited  to  a  single  point:  that  the 
same  person  who  exercises  the  rights  of  the  Prussian  crown 
shall  be  the  person  who  exercises  the  rights  and  authority 
granted  to  the  Praesidium.  It  does  not  extend  to  the  laying 
down  of  rules  according  to  which  the  Prussian  crown  shall  be 
acquired. 

1  See  Fischer,  op.  cit.  pp.  47,  48.  2  Laband,  I.  pp.  200-201. 


THE  KAISER  37 


The  rights  of  the  imperial  dignity  attach  to  the  Prussian 
crown,  not  to  the  person  of  the  ruling  monarch.  Should 
occasion  for  a  regency  occur  in  Prussia,  the  exercise  of  the 
imperial  powers  would  pass  to  that  person  who,  for  the  time 
being,  exercised  the  rights  of  the  Prussian  crown.1  The 
question  of  a  regency  in  Prussia  is  provided  for  in  Arts. 
56-58  of  the  Prussian  Constitution.  If  the  king  is  a  minor, 
or  is  permanently  hindered  from  ruling  in  person,  then  that 
agnate  to  whom  the  throne  would  next  descend,  if  he  be  of  age, 
assumes  the  regency.  He  must  at  once  summon  the  legisla- 
tive Chambers,  who,  in  joint  session,  shall  take  action  upon 
the  question  of  the  necessity  for  a  regency.  If  there  is  no 
agnate  of  full  age  available,  and  no  law  already  on  the  statute 
books  provides  for  such  an  emergency,  then  the  Ministry 
must  summon  the  Chambers,  who,  in  joint  session,  shall  elect 
a  regent.  Until  the  regent  has  entered  upon  his  duties,  the 
government  is  carried  on  by  the  Ministry.  The  regent 
exercises,  in  the  name  of  the  king,  those  powers  which  belong 
to  the  crown.  He  takes  an  oath,  before  the  united  Chambers, 
that  he  will  maintain  the  Constitution  and  rule  in  conformity 
with  it  and  with  the  laws.  Until  such  oath  has  been  taken 
the  Ministry  is  responsible  in  every  case  for  all  governmental 
transactions. 

The  determination  of  the  question  of  a  regency  in  Prussia 
also  lies  wholly  outside  the  sphere  of  imperial  action.  It  is  a 
matter  of  Prussian  internal  affairs,  and  is  therefore  settled 
according  to  Prussian  constitutional  law.  Nevertheless,  he 
who  is  regent  by  reason  of  Prussian  law  is  also  regent  of  the 
Empire.  Neither  the  necessity  for  a  regency  in  the  Empire, 
nor  the  legal  provisions  for  such  cases  as  the  absence  of  any 
agnate  of  proper  age,  etc.,  come  within  the  purview  of  the 

1  See  Laband,  I.  p.  20;  Seydel,  Comm.  p.  155;  Fischer,  op.  cit.  pp.  49, 
50;  Von  Kirchenheim,  Die  Regentschaft,  pp.  117-130. 


38  THE  GERMAN  EMPIRE 

imperial  organs.  Like  the  question  of  succession  to  the 
throne,  the  question  of  a  regency  is  wholly  a  Prussian  matter. 
The  exercise  of  the  rights  and  powers  of  the  Kaisership,  or 
of  the  regency,  should  such  become  necessary,  attach  them- 
selves to  a  fact.  Whoever  is  king  of  Prussia,  or  regent  of 
Prussia,  is  ipso  facto  German  Emperor  or  German  regent. 
Matters  of  succession  and  of  regency  lie  wholly  outside  the 
sphere  of  imperial  action  and  are  left  to  the  laws  governing 
the  Hohenzollern  House  and  to  the  Prussian  Constitution.1 

The  rights  of  the  Kaiser  are  usually  treated  by  German 
writers  under  two  heads:  personal  rights  and  governmental 
rights.  First  and  foremost  among  the  personal  rights,  or 
rights  to  certain  honors,  is  the  right  to  the  title  "German 
Emperor."  The  form  of  the  title  was  the  result  of  premedi- 
tation. It  was  purposely  chosen  in  preference  to  the  title 
"Emperor  of  Germany"  and  "Emperor  of  the  Germans." 
Great  care  was  taken  not  to  offend  the  sensibilities  of  the  other 
German  monarchs  by  selecting  a  designation  for  the  Prae- 
sidium  of  the  Bund  which  would  seem  to  diminish  in  any  way 
the  royal  dignity  of  the  other  ruling  princes  or  reduce  them 
to  even  the  semblance  of  subordination  to  the  head  of  the 
Empire.  The  title  "German  Kaiser"  carries  with  it  no 
idea  of  territorial  domination.  The  Kaiser  is  a  monarch 
in  the  Empire,  but  not  over  the  Empire.  He  is  in  no  sense  the 
Landesherr  of  the  Empire.  The  old  feudal  conception  which 
reduced  the  State  to  a  matter  of  private  law,  a  possession, 
theoretically  at  least,  of  the  monarch,  finds  no  footing  what- 
ever hi  the  German  Empire.  The  title  "German  Emperor" 

1  See  Schulze,  Pr.  Staatsr.  I.  pp.  178  ff. ;  Von  Ronne,  Pr.  Staatsr.,  Zorn's  edi- 
tion, I.  pp.  218  ff.  The  House  Laws  have  been  collected  and  published  with 
an  introduction  by  Hermann  Schulze,  Die  Hausgesetze  der  regierenden  deut- 
schen  Furstenhauser,  3  Bde.,  1885.  Consult  Bd.  III.  pp.  535  ff.,  in  connection 
with  Prussian  matters  discussed  in  the  text. 


THE  KAISER 


is  an  official  title,  a  magisterial  title,  although  the  Kaiser 
cannot  strictly  be  classed  among  the  imperial  officials.  It  is 
only  in  matters  which  are  imperial  in  their  nature  and  relation 
—  not  Prussian  —  that,  from  a  purely  legal  standpoint,  the 
title  can  be  used.1 

The  bearing  of  the  title  "German  Kaiser  "  carries  with  it  the 
right  to  the  imperial  standard  and  coat  of  arms.2  By  Proc- 
lamation of  18  August,  1871,  the  Kaiser  invested  the  Prussian 
Crown  Prince  with  the  title:  "Crown  Prince  of  the  German 
Empire,"  with  the  predicate  "Imperial  Highness."  The 
title  "Crown  Prince  of  the  German  Empire"  was  made 
hereditary.  Further,  various  officials  and  administrative 
authorities  appointed  by  the  Kaiser  are  given  the  predicate 
"Imperial."  This  predicate  may  also  be  given  to  private 
servants  of  the  Kaiser,  to  officers  of  the  imperial  court,  and 
to  certain  tradesmen,  firms,  etc.,  such  as  the  "Hofliefe- 
ranten." 

The  Kaiser  also  enjoys  special  protection  before  the  crimi- 
nal law.  He  is  not  responsible  in  the  sense  that  a  court  exists 
before  which  he  may  be  brought  for  any  act  or  omission. 
Moreover,  every  attempt  upon  the  life  of  the  Kaiser,  as  well 
as  the  murder  of  the  Kaiser,  is  punishable  with  death.3 
Acts  or  words  of  a  scandalous  nature  directed  against  the 
Kaiser  are  subjected  to  special  penalties.4 

The  Kaiser,  as  such,  receives  no  income  from  the  Imperial 

1  See  extract  from  letter  of  Ludwig  of  Bavaria,  already  mentioned  above 
in  the  text,  and  the  Proclamation  of  Versailles,  18  June,  1871,  in  which  Wil- 
helm  I.  announces  the  assumption  of  the  title  for  himself  and  his  successors 
to  the  Prussian  crown  "in  alien  Unseren  Beziehungen  und  Angelegenheiten 
des  Deutschen  Reiches."  In  official  documents  the  title  "  German  Kaiser"  is 
always  coupled  with  the  title  "King  of  Prussia."  It  never  appears  alone. 

1  See  Proclamation  of  3  August,  1871  (RGBl.  p.  318,  with  correction,  p.  458), 
Nr.  2  and  3.  Also  Graf  Stillfried's  work,  Die  Attribute  des  neuen  D.  Reiches, 
abgebildet,  beschrieben  und  erlautert,  mit  16  Tafeln,  2  Aufl.,  Berlin,  1874. 

s  StGB.  §  80.  4  Ibid.  §  §  94,  95. 


40  THE  GERMAN  EMPIRE 

Treasury.  There  is  no  "Civil  List."  The  pecuniary  rev- 
enues of  the  Kaiser  are  bestowed  upon  him  as  Prussian  king, 
or  come  to  him  from  the  possessions  of  the  royal  house.  A 
fund,  however,  called  the  " Dispositions jonds,"  is  placed  at 
his  disposal  each  year  as  an  item  of  the  Budget  Law. 

The  governmental  rights  and  functions  of  the  Kaiser  are 
of  a  varied  nature,  falling  within  the  sphere  both  of  legisla- 
tion and  of  administration.  A  detailed  account  of  these 
rights  and  functions  would  necessitate  a  repetition  of  much 
that  must  appear  hi  the  discussion  of  taxation  and  customs, 
military  affairs,  and  other  branches  of  the  imperial  organiza- 
tion. It  is  enough  here  to  trace  the  constitutional  rights  and 
functions  of  the  Kaiser  as  a  governmental  organ  in  broad  and 
general  outlines. 

In  the  first  place,  the  Kaiser  is  the  sole  representative  of  the 
Empire  so  far  as  other  States  are  concerned.  Article  n,  Cl. 
i,  of  the  Imperial  Constitution  declares,  "The  Kaiser  shall 
represent  the  Empire  in  international  matters  and  in  the 
name  of  the  Empire  shall  declare  war  and  make  peace,  and 
enter  into  alliances  and  treaties  with  foreign  States."  In 
exercising  the  powers  thus  laid  upon  him,  the  Kaiser  is,  of 
course,  not  left  to  his  own  free  discretion.  The  authority 
vested  hi  him  is  not  an  unlimited  one.  A  check  upon  the 
exercise  of  his  powers  as  representative  of  the  Empire  is 
found  in  the  cooperation  of  the  Bundesrat  and  Reichstag  in 
certain  instances  specified  in  the  Constitution.  The  princi- 
pal point  now  brought  forward  is  that  the  sole  and.  exclu- 
sive representative  of  the  Empire  is  the  Kaiser.  No  treaty 
can  be  made  without  him.  Neither  the  Bundesrat  nor  the 
Reichstag  nor  both  together  can  ignore  the  Kaiser  and  enter 
into  contract  relations  with  a  foreign  State. 

In  declaring  war  the  Kaiser  can  act  upon  his  own  initiative 
only  in  repelling  an  invasion  of  German  soil.  In  all  other 


THE  KAISER  41 


instances,  the  consent  of  the  Bundesrat  is  necessary.1  When 
a  treaty  with  a  foreign  State  involves  matters  which,  under 
Art.  4  of  the  Imperial  Constitution,  fall  within  the  sphere 
of  imperial  legislation,  not  only  is  the  consent  of  the  Bundes- 
rat necessary  for  their  conclusion,  but  the  approval  of  the 
Reichstag  is  essential  to  their  validity.2  The  imperial  am- 
bassadors, ministers,  and  accredited  representatives  of  the 
Empire  are  appointed  by  the  Kaiser,  and  the  representa- 
tives of  other  States  in  Berlin  are  accredited  to  him. 
The  German  consuls  abroad  are  exclusively  imperial  con- 
suls and  are  appointed  by  the  Kaiser,  after  hearing  the 
Bundesrat's  Committee  on  Trade  and  Commerce.3 

According  to  Art.  12  of  the  Imperial  Constitution,  the 
Kaiser  has  the  right  to  convene,  open,  prorogue,  and  close 
the  Bundesrat  and  Reichstag.  So  far  as  the  Bundesrat  is 
concerned,  this  right  has  become  practically  obsolete,  for 
the  reason  that  that  body  is  now  regarded  as  continuously 
in  session.4  No  annual  convening  of  the  Bundesrat,  as  pro- 
vided for  in  Art.  13  of  the  Imperial  Constitution,  is  there- 
fore necessary.  The  right  of  the  Kaiser  to  prorogue  the 
Reichstag  is  modified  by  Art.  26  of  the  Constitution,  which 
declares  that  prorogation  shall  not  exceed  a  period  of  thirty 
days  without  the  consent  of  the  Reichstag  and  shall  not  be 
repeated  during  the  same  session  without  such  consent. 
While  the  Kaiser  may  not  dissolve  the  Reichstag,  the  power 
to  do  so  being  given  to  the  Bundesrat,  by  Art.  24  of  the 

1  RVerj.  Art.  n,  Cl.  2.    The  question  whether  an  attack  has  been  actually 
made  on  imperial  territory  is  determined  by  the  Kaiser  himself.     Were  it 
not  so,  the  right  of  the  Kaiser  to  assume  warlike  action  in  such  case  becomes 
absolutely  illusory.     See  Von  Jagemann,  op.  cit.  p.  106. 

2  RVerf.  Art.  n,  0.3. 

3  RVerf.  Art.  56. 

4  The  same  is  also  true  respecting  the  provisions  in  Art.  14  as  to  convening 
the  Bundesrat  on  request  of  one-third  the  votes. 


42  THE  GERMAN   EMPIRE 

Constitution,  with  the  consent  of  the  Kaiser,  yet  in  actual 
practice  the  Kaiser  does  dissolve  the  Reichstag  with  the  con- 
sent of  the  Bundesrat.  Moreover,  the  Kaiser  may  not  sum- 
mon the  Reichstag  unless  the  Bundesrat  is  also  convened.1 
Should  the  Reichstag  be  dissolved,  a  new  election  must  be 
held  within  thirty  days  and  the  new  Reichstag  convened 
within  sixty  days  of  the  date  of  dissolution.2 

Bills  passed  by  the  Bundesrat  are  laid  before  the  Reichstag 
in  the  name  of  the  Kaiser.  Measures  which  have  passed 
both  legislative  bodies  are  engrossed  and  published  by  the 
Kaiser  in  the  name  of  the  Empire.  In  the  matter  of  en- 
grossing and  publishing  the  laws  thus  passed  by  the  Bundes- 
rat and  Reichstag,  the  Kaiser  has  no  discretion.  It  is  gen- 
erally admitted,  however,  that  in  performing  the  legislative 
functions  assigned  to  him  under  the  Constitution,  the  Kaiser 
has  the  right  to  satisfy  himself  that  the  formal  requirements 
have  been  met  in  the  passage  of  the  bill,  and  that  he  may 
refuse  to  publish  a  law  which,  in  his  judgment,  is  formally 
defective.  He  may  not  refuse  on  the  mere  ground  that  the 
content  of  the  law  is  repulsive  to  him,  or  that  it  is  a  piece  of 
bad  legislation. 

The  Kaiser,  as  such,  has  no  right  of  initiation  in  the 
matter  of  imperial  legislation.  This,  at  least,  is  the  theory. 
As  a  fact,  however,  this  rule  is  constantly  violated  in  practice, 
and  one  may  speak  of  a  right  of  initiation  on  the  part  of  the 
Kaiser  as  a  "convention"  of  the  Constitution,  or,  better,  as 
part  of  the  "unwritten  Constitution"  of  the  Empire.  Con- 
stitutionally the  Kaiser  has  no  veto.  He  does  possess  a  prac- 
tical veto  as  king  of  Prussia,  controlling  the  Prussian  votes 
in  the  Bundesrat.  That  lies  wholly  outside  of  his  sphere  of 
action  as  Kaiser. 

The  Kaiser  not  only  publishes  the  laws  of  the  Empire,  but 

1  RVerf.  Art.  13.  2  Ibid.  Art.  25. 


THE  KAISER  43 


also  supervises  their  execution.1  This  supervision  is  nowhere 
defined  in  the  Constitution.  It  does  not  involve  any  inde- 
pendent right  of  issuing  ordinances  on  the  part  of  the  Kaiser, 
whereby  he  may  interfere  in  the  activities  of  the  several  States 
to  whom  the  execution  of  the  imperial  laws  is  intrusted,  by 
the  direct  issuance  of  ordinances  remedying  any  defect  or 
neglect  on  the  part  of  the  State  officials.  The  right  of  the 
Kaiser  to  issue  ordinances  is  limited  to  such  ordinance  power 
as  may  be  given  him  by  the  Constitution  or  by  specific  im- 
perial laws.  Many  such  laws,  however,  are  now  on  the  statute 
books,  granting  to  him  the  power  to  keep  a  check  on  or 
exercise  a  species  of  control  over  those  State  officials  in  whose 
hands  the  execution  of  the  imperial  laws  is  placed.  Nor 
may  the  Kaiser  immediately  compel  the  proper  execution  of 
the  imperial  laws.  By  means  of  imperial  officials,  whose 
duty  it  is  to  inspect  the  work  of  the  State  officials,  he  obtains 
reports  of  the  manner  in  which  the  imperial  laws  are  carried 
out  by  the  various  States,  but  he  has  no  disciplinary  or  police 
power  by  means  of  which  he  may  force  the  State  officials  to 
properly  perform  their  duties  to  the  Empire.  Should  any 
State  neglect  to  carry  out  the  imperial  laws  or  prove  refrac- 
tory, the  Kaiser  may,  as  a  last  resort,  bring  the  matter  to  the 
attention  of  the  Bundesrat,  in  whose  hands  is  the  power  to 
issue  an  "Execution."  Such  an  "Execution"  would  be 
carried  out  by  the  Kaiser.2 

The  Kaiser  appoints  the  Imperial  Chancellor,  the  sole 
responsible  Minister  of  the  Empire,  and  may  dismiss  him  at 
pleasure.3  Since  the  Imperial  Chancellor  is  the  vital  centre 
of  the  imperial  administration  and  is  also  President  of  the 
Bundesrat,  no  small  power  is  thus  put  into  the  hands  of  the 

1  RVerf.  Art.  17.  2  Ibid.  Art.  19. 

3  Ibid.  Art.  15.  See  also  Reichsbeamtengesetz,  31  March,  1873  (RGBl. 
p.  61),  §  25,  —  found  in  Triepel,  pp.  124  ff. 


44  THE  GERMAN  EMPIRE 

Kaiser.  He  becomes  virtually  director  of  the  general  gov- 
ernmental policy.  For  though  as  a  matter  of  fact  the  Imperial 
Chancellor  conducts  the  business  of  the  imperial  government, 
yet  he  is  the  legal  instrument  and  aid  of  the  Kaiser.1  The 
Kaiser  also  appoints  all  the  imperial  officials,  and  he  may 
also  retire  them.2  Such  appointment  and  dismissal  requires 
the  countersignature  of  the  Imperial  Chancellor.  That  is 
to  say,  the  heads  of  the  various  State  departments  and  all 
the  minor  imperial  officials  are  appointed  and  removed  by 
the  Kaiser.  This  places  the  administrative  hierarchy,  from  the 
Imperial  Chancellor  down,  in  the  hands  of  the  Kaiser.  In 
making  these  appointments  the  cooperation  of  the  Bundesrat 
is  not  necessary.  The  Kaiser  also  appoints  on  motion  of  the 
Bundesrat  the  members  of  the  Reichsgericht,  or  Imperial 
Court.3  These  judges,  once  appointed,  are  not  subject  to 
removal  by  the  Kaiser  at  his  discretion  or  even  upon  motion 
of  the  Bundesrat.  The  appointment  of  the  judges  is  for  life, 
thus  insuring  the  independence  of  the  courts. 

In  certain  instances  the  Kaiser  has  the  right  of  pardon. 
Such  power  is  not  conferred  by  the  Imperial  Constitution,  but 
by  the  Code  of  Criminal  Procedure,  Sec.  484,  which  reads : 
"In  matters  in  which  the  Reichsgericht  has  passed  judgment 
as  a  court  of  first  instance,  the  Kaiser  has  the  right  of  par- 
don."4 In  the  application  of  this  law,  no  distinction  is  made 
between  cases  to  which  the  competence  of  the  Reichsgericht 
extends  per  se  and  individual  cases  to  which  that  competence 
is  specially  extended.  Further,  the  pardoning  power  pf  the 
Kaiser  consists  only  in  the  right  to  remit  penalty  already 

1  Laband,  I.  p.  211.  2  RVerf.  Art.  18.  •  GVG.  §  127. 

4  The  competence  of  the  Reichsgericht  as  a  court  of  first  instance  extends 
to  the  trial  of  cases  of  high  treason  and  treason  in  a  State  where  these 
crimes  are  directed  against  the  Kaiser  or  against  the  Empire.  Gerichtsverfas- 
sungsgesetz,  §  136. 


THE  KAISER  45 


imposed  by  judicial  sentence.  It  does  not  involve  any 
" Abolitionsrecht"  or  power  to  "nolle  prosequi."  l  According 
to  the  Law  regulating  Consular  Jurisdiction,2  the  Kaiser 
has  the  right  of  pardon  in  criminal  cases  where  judgment 
has  been  passed  by  the  consul,  or  by  the  consular  court 
acting  as  a  court  of  first  instance.  Moreover,  the  Kaiser 
may  exert  the  pardoning  power  in  the  disciplinary  courts 
and  may  also  mitigate  sentence  passed  by  the  disciplinary 
boards.3  He  may  also  exercise  the  pardoning  power  in  the 
prize  courts,4  and  in  the  courts  of  the  Protectorates.5 

Extensive  powers,  powers  of  a  monarchical  nature,  belong 
to  the  Kaiser  as  commander-in-chief  of  the  armed  forces  of 
the  Empire.  These  are  explicitly  treated  in  a  later  chapter 
of  this  work.  The  Kaiser  has  the  supervision  of  the  German 
army,  and  may  at  any  time  satisfy  himself  by  inspection 
that  the  organization,  formation,  equipment,  and  command, 
the  training  of  the  men,  and  the  qualifications  of  the  officers 
are  up  to  standard,  and  that  the  condition  of  the  several 
divisions  is  such  as  meets  his  approval.  He  may  correct 
any  defects  found  as  a  result  of  his  inspection.  It  is  within 
the  competence  of  the  Kaiser  also  to  determine  the  strength, 
composition,  and  division  of  the  contingents  of  the  army. 
With  him  rests  the  organization  of  the  Landwehr,  or  National 
Defence,  and  he  also  determines  the  garrisons  within  federal 
territory.  He  may,  should  occasion  arise,  mobilize  any  por- 
tion of  the  troops.6 

1  For  brief  discussion  of  the  pardoning  power  and  Abolitionsrecht,  see 
Lowe,  Kommentar  zur  Strajprozessordnung,  1900,  pp.  26-28. 

2  Law  of  7  April,  1900  (RGBl.  p.  213),  §  72. 

3  RBeamtenges.  §  118. 

4  Law  of  15  February,  1889  (RGBl.  p.  5),  §  27. 

8  Law  of  25  July,  1900  (RGBl.  p.  813),  §  3.  In  matters  relating  to  the 
customs  and  taxes,  the  pardoning  power  remains  in  the  hands  of  the  rulers 
of  the  several  States.  Cust.  Un.  Tr.  of  8  July,  1867,  Art.  18  (RGBl.  p.  81). 

•  RVerf.  Art.  63. 


46  THE  GERMAN  EMPIRE 

All  the  German  troops  take  an  oath  of  allegiance  to  the 
Kaiser  personally,  and  are  bound  by  their  military  oath  to 
implicitly  obey  his  orders.  The  appointment  of  commanders 
of  the  contingents,  of  officers  commanding  more  troops  than  a 
contingent,  and  of  officers  in  charge  of  fortresses  belongs  to 
the  Kaiser.  The  appointment  of  generals,  and  of  officers 
performing  the  duties  of  generals  in  a  contingent,  is  in  each 
case  subject  to  the  Kaiser's  approval.1  All  officers  appointed 
by  the  Kaiser  take  the  oath  of  allegiance  to  him. 

The  German  navy  is  a  united  one,  under  the  supreme 
command  of  the  Kaiser,  who,  as  in  the  case  of  the  army, 
has  charge  of  its  constitution  and  organization  and  the  ap- 
pointment of  its  officers  and  officials.  Both  officers  and 
seamen  are  sworn  in  the  name  of  the  Kaiser.2  The  Kaiser 
has  also  the  right  to  construct  fortresses,  appropriations  for 
the  same  having  been  made  according  to  the  constitutional 
provisions  in  Art.  i2.3  Should  the  public  safety  demand 
it,  in  federal  territory,  the  Kaiser  may  proclaim  martial  law 
in  any  part  of  the  Empire.4 

It  will  be  readily  seen  that  with  the  supreme  control  of 
military  and  naval  matters  in  the  hands  of  the  Kaiser,  with 
a  military  system  which  aims  to  pass  the  whole  able-bodied 
male  population  of  the  Empire  through  the  army,  and  with 
the  oath  of  personal  allegiance  binding  officers  and  men  to  the 
Kaiser,  the  position  of  the  Kaiser  as  something  more  than  a 
mere  official  head  of  the  Empire  is  tremendously  strength- 
ened, and  a  monarchical  tendency  finds  a  ready  instrument 
fitted  to  its  hand. 

In  conclusion,  the  Kaiser  exercises  a  monarchical  function 

1  RVerj.  Art.  64.  J  Ibid.  Art.  53.  •  Ibid.  Art.  65. 

4  Ibid.  Art.  68.  Certain  exemptions  in  the  case  of  Bavaria  and  of  Wiirt- 
temberg  arising  out  of  the  "November  Treaties"  are  noted  in  the  chapter  on 
"  The  Armed  Forces  of  the  Empire." 


THE  KAISER  47 


in  relation  to  Alsace-Lorraine.1  To  him  belongs  the  powers 
usually  accorded  to  the  ruler  of  a  State.  Strictly  speaking, 
however,  the  Kaiser  is  not  the  Landesherr  of  Alsace-Lorraine. 
The  relation  of  the  Kaiser  to  the  Imperial  Territory  is  based 
entirely  on  law.2  The  power  exercised  in  the  German 
protectorates  is  exercised  in  the  name  of  the  Kaiser.3 

1  See  Law  of  9  June,  1871  (RGBl.  p.  212),  §  3. 
J  See  chapter  on  the  "  Relation  of  Alsace-Lorraine  to  the  Empire." 
3  See  Law  of  17  April,   1886  (RGBl.  p.  78),  §  i;   also  amendments  of 
7  July,  1887  (RGBl.  p.  307);    15  March,  1888  (RGBl.  p.  71);    2  July,  1899 
(RGBl.  p.   365) ;   25  July,  1900  (RGBl.  p.  809) ;    10  Sept.,   1900  (RGBL 
p.  813);  Ordinance  9  November,  1900  (RGBl.  p.  1005). 


.      CHAPTER  IV 
THE   BUNDESRAT1 

THE  Bundesrat,  or  Federal  Council,  is  an  institution  pecu- 
liar to  the  constitutional  system  of  the  German  Empire.  No 
close  analogy  to  it  can  be  found  in  any  other  governmental 
organization.  While  in  some  instances  resemblances  can 
be  traced  between  the  Bundesrat  and  the  Upper  House  in 
other  constitutional  governments,  yet  the  similarities  are 
slight  and  the  divergencies  so  great  that  one  must  needs  place 
the  Bundesrat  in  a  class  by  itself.  It  is  not  an  "  Upper  House, " 
yet  it  performs  functions  which  usually  fall  to  such  a  body. 
An  organ  of  legislation,  it  has  no  power  of  deliberation,  but 
registers  the  will  of  the  several  governments  whom  it  repre- 
sents and  by  whom  it  is  instructed.  It  may  make  no  law 
without  the  assent  of  the  Reichstag,  yet  it  possesses  a  wide 
power  of  ordinance.  Standing  for  the  federal  idea  in  the 
Empire,  it  is  the  place  of  all  places  where  the  individual 
States  may  assert  themselves,  where  the  play  of  State  interests 
is  adjusted.  In  short,  the  Bundesrat  is  the  very  core  of  the 
Imperial  Government.  It  is  the  centre  around  which  the 
whole  system  revolves.  For,  as  Meyer  observes,  the  Bun- 
desrat is  not  a  mere  congress  of  ambassadors,  like-  the  old 

1  For  literature  on  the  subject  of  the  Bundesrat,  aside  from  the  treatises 
of  the  various  writers  on  the  Constitution,  such  as  Laband,  Meyer,  Schulze, 
Hanel,  Zorn,  Arndt,  etc.,  see  Seydel,  Der  deutsche  Bundesrat,  in  Holzendorft- 
Brentano,  Jahrbuch  jur  Geselzgebung,  etc.,  neue  Folge  III.,  pp.  273  ff.; 
Comm.,  pp.  131  ff.  et  passim;  Laband,  Article,  "Bundesrat,"  in  Stengel's 
W'drterb.  I.  pp.  284  ff.;  Kliemke,  Die  Staatslr.  Stellung  des  Brats;  Henvegen, 
RVerj.  und  Bundesrat,  Koln,  1902  (Doktor -dissertation). 

48 


THE  BUNDESRAT  49 


Bundestag.  In  it  sit,  on  the  one  hand,  the  leading  statesmen 
of  the  several  States,  on  the  other  hand,  experienced  officials 
from  the  various  branches  of  the  administration ;  and  by  this 
means  the  necessary  relations  between  legislation  and  admin- 
istration are  established,  without  which  the  real  effectiveness 
of  both  is  impossible.  The  same  men  who  cooperate  in  the 
Bundesrat  in  the  sanctioning  of  the  laws  direct  the  execution 
of  these  laws  in  the  several  States.  Over  all  the  political 
assemblies  of  other  States,  the  Bundesrat  has  this  advantage  : 
in  it  are  found  only  men  who  are  in  the  very  midst  of  the 
business  with  which  it  is  called  upon  to  deal.  This  observa- 
tion of  Meyer  must  be  accompanied  by  the  suggestion  that  the 
composition  of  the  Bundesrat  in  which  he  sees  such  advan- 
tage is  a  matter  of  political  expediency  and  not  of  law.  The 
rulers  of  the  several  States  are  under  no  legal  obligation  what- 
ever to  choose  their  ministers  or  other  officials  as  their  rep- 
resentatives in  the  Bundesrat.  In  fact,  the  choice  of  the 
rulers  is  quite  unrestricted. 

The  Bundesrat  is  composed  of  representatives  of  the  mem- 
bers of  the  Bund.1  The  number  of  delegates  which  each 
member  of  the  Empire  may  appoint  is  determined  by  the 
number  of  votes  which  it  possesses  in  the  Bundesrat.  Under 
the  constitution  of  the  North  German  Confederation  each 
State  was  entitled  to  that  number  of  votes  in  the  Bundesrat 
which  it  had  in  the  Plenum  of  the  old  Diet  of  the  German 


1  There  is  a  difference  between  German  writers  on  constitutional  law  as 
to  the  content  of  the  term  "member  of  the  Bund."  Meyer,  Staatsr.  p.  388, 
claims  that  the  members  of  the  Empire  are  the  monarchs  of  the  States  and 
the  senates  of  the  three  free  cities.  He  cites,  in  support  of  his  view,  Thudi- 
chum,  Jahrb.  d.  D.  Reiches,  I.  p.  21,  note  3;  Von  Mohl,  Staatsr.  p.  233; 
Seydel,  op.  cit.  pp.  273  ff.  See,  on  the  other  hand,  Laband,  I.  p.  91 ;  Jelli- 
nek,  System,  etc.,  p.  287,  note  i ;  Anschiitz,  Staatsr.  in  Hoh.-Kohler,  II.  p.  540, 
who  claim  that  the  members  of  the  Empire  are  the  several  States.  This  is 
the  better  view. 


50  THE  GERMAN  EMPIRE 

Bund.1  Prussia,  originally  possessing  four  votes,  received  in 
addition  the  thirteen  votes  belonging  to  Hannover,  Kur-Hesse, 
Holstein,  Nassau,  and  Frankfurt,  on  the  incorporation  of  those 
States  into  its  territory,  making  the  present  vote  of  Prussia 
in  the  Bundesrat  seventeen.2  By  the  terms  of  the  Customs 
Union  Treaty  of  8  July,  1867,  Bavaria,  originally  possessing 
four  votes  in  the  old  Plenum,  received  two  extra  votes  in  the 
Bundesrat  of  the  Zollverein.3  These  votes  were  retained 
on  the  entrance  of  Bavaria  into  the  Empire.  The  distribu- 
tion of  votes  in  the  Bundesrat  to-day  is  identical  with  that  in 
the  Bundesrat  of  the  Zollverein,  and  is  as  follows :  Prussia, 
seventeen;  Bavaria,  six;  Saxony  and  Wiirttemberg,  each 
four;  Baden  and  Hesse,  each  three ;  Mecklenburg-Schwerin 
and  Brunswick,  each  two ;  and  the  rest  of  the  States,  includ- 
ing the  three  Hanse  Cities,  each  one,  making  a  total  of  fifty- 
eight  votes.4 

The  members  of  the  Bundesrat  do  not  vote  as  individuals, 
exercising  their  own  discretion  in  the  determination  of 
matters  brought  before  them.  The  Bundesrat  is  not,  there- 
fore, primarily  a  deliberative  body.  The  delegates  are  in- 
structed. This  instruction  is  given  by  the  government  of  the 
State  to  which  they  belong,  in  the  manner  provided  by  the 
laws  of  that  State.5  The  vote  is  the  vote  of  the  State.  Hence 

1  These  votes  were  as  follows :  Austria,  4 ;  Prussia,  4 ;  Saxony,  4 ;  Bavaria, 
4;  Hannover,  4;  Wiirttemberg,  4;  Baden,  3;  Kur-Hesse,  3;  Hesse-Darm- 
stadt, 3 ;  Holstein,  3 ;  Luxemburg,  3 ;  Brunswick,  2 ;  Mecklenburg- 
Schwerin,  2;  Nassau,  2;  Saxe- Weimar,  i;  the  other  23  states  i  each, 
making  69  votes  in  all. 

1  Vcrf.  d.  NGB.  Art.  6. 

1  Cust.  Un.  Tr.  Art.  8,  §  i. 

4  RVcrj.  Art.  6. 

1  Meyer,  Staatsr.  p.  389;  Laband,  I.  pp.  223  ff.,  93  ff.  As  to  whether  the 
instructions  can  be  made  contingent  upon  the  assent  of  the  Landtag,  there  is 
a  considerable  dispute.  In  the  affirmative  may  be  cited  Laband,  Staatsr.  I. 
pp.  223  ff.  Compare  also  Zorn,  Staatsr.  I.  pp.  132, 168  ff. ;  Von  Kirchenheim, 
Lehrb.  d.  D.  Staatsr.,  p.  299.  In  the  negative,  Meyer,  op.  cit.  pp.  389,  390; 


THE  BUNDESRAT 


the  unit  rule  prevails,  each  delegation  voting  a  solid  vote. 
The  States  are  not  under  compulsion  to  exercise  their  right 
to  vote  in  the  Bundesrat.1 

The  Bundesrat  has  the  right  to  examine  and  pass  upon  the 
credentials  of  its  members.  It  has  no  right,  however,  to 
verify  the  instructions.2  It  is  not  for  the  Bundesrat  to  deter- 
mine whether  the  vote  of  a  member  tallies  with  the  instruc- 
tions of  his  government.  The  Bundesrat  cannot  "go  behind 
the  vote."  Each  member  is  responsible  to  his  own  govern- 
ment alone  for  the  way  in  which  he  casts  his  ballot.  When 
that  vote  is  once  cast,  the  government  to  which  the  delegation 
belongs  is  unconditionally  bound  thereby.3 

Alsace-Lorraine,  not  being  a  State,  is  for  that  reason  not  a 
"member"  of  the  Bund.  It  is  Imperial  Territory  —  Reichs- 
land.  Alsace-Lorraine,  therefore,  has  no  claim  to  a  repre- 
sentation in  the  Bundesrat.  The  Statthalter  has  been  given 
the  right,  by  law,  to  appoint  Commissioners  to  the  Bundesrat, 
who,  while  they  have  no  authority  to  vote,  are  yet  entitled 
to  take  part  in  the  discussion  of  matters  which  affect  the  in- 
terests of  Alsace-Lorraine.4 

Seydel,  op.  cit.  p.  277,  Comm.  p.  132;  Hand,  Staatsr.  I.  p.  785;  Studien,  I. 
p.  219;  Von  Ronne,  Pr.  Staatsr.  II.  p.  360;  Von  Sarwey,  Wurtt.  Staatsr.  II. 
pp.  78  ff. ;  Schulze,  Staatsr.  II.  52. 

1  Meyer,  Staatsr.  p.  389;  see  also  Laband,  I.  pp.  219  fit;   Seydel,  op.  cit. 
p.  280.     Zorn,  Staatsr.  I.  p.  157,  seems  to  hold  that  in  case  of  refusal  to  vote 
an  "execution"  is  justified. 

2  Meyer,  Staatsr.  p.  399;   Laband,  I.  p.  227;  Von  Ronne,  Staatsr.  I.  p. 
204;  Zorn,  Staatsr.  I.  p.  158;  Seydel,  Jahrb.  p.  276. 

3  Laband,  I.  p.  227. 

4  Law  of  4  July,   1879  (RGBl.  p.  165),  §  7.      The   Revised   Standing 
Orders  for  the  Bundesrat  of  26  April,  1880,  §  5,  read:  "Die  durch  den  Statt- 
halter fur  Elsass-Lothringen  in  den  Bundesrat  abgeordneten  Kommissare 
konnen  an  den  Berathungen  des  Bundesrats  und  seiner  Ausschusse  theilneh- 
men.     Sie  konnen  im  Verlaufe  der  Diskussion  eines  auf  die  Tagesordnung 
gesetzten  Gegenstandes  Antrage  stellen,  auch    mit   Referaten   beauftragt 
werden."     See  reprint  in  Triepel,  p.  227. 


THE  GERMAN  EMPIRE 


The  opening,  proroguing,  and  closing  of  the  Bundesrat  is 
the  right  of  the  Emperor  alone.1  While  the  Emperor  may 
summon  the  Bundesrat  when  he  will,  yet  under  three  condi- 
tions he  must  summon  it:  at  least  once  a  year;  when  it  is 
requested  by  at  least  one-third  of  the  whole  number  of  votes 
in  the  Bundesrat;2  and,  finally,  whenever  the  Reichstag  is 
summoned.  The  Bundesrat  may,  however,  be  summoned 
without  the  Reichstag  being  called  together  at  the  same  time.3 

The  Bundesrat  transacts  its  business  in  conformity  to  its 
"Standing  Orders,"  adopted  27  February,  1871,  revised  26 
April,  1880,  and  further  amended  31  January,  1895.*  The 
Imperial  Chancellor,  who  is  appointed  by  the  Emperor,  pre- 
sides over  the  Bundesrat  and  conducts  its  affairs.5  For  this 
reason  the  Imperial  Chancellor  must  always  be  a  Prussian 
delegate.  On  the  one  hand,  the  presidency  of  the  Bundesrat 
corresponds  to  the  praesidial  position  of  Prussia  in  the  Bund. 
On  the  other  hand,  the  presiding  officer  of  the  Bundesrat 

1  RVerf.  Art.  12.  In  actual  practice  the  summoning  of  the  Bundesrat 
has  fallen  into  disuse,  for  the  reason  that  the  Bundesrat  is  no  longer  formally 
closed  by  the  Emperor.  Arndt,  Komm.  p.  138,  note  2,  to  Art.  12  of  the  RVerf. 

1  RVerf.  Arts.  13,  14.  That  is,  it  needs  20  votes  at  least  to  make  a  request 
for  a  meeting  of  the  Bundesrat  binding  on  the  Emperor.  Should  the  Emperor 
fail  to  fulfil  his  obligation,  the  Bundesrat  has  no  right  to  assemble  on  its  own 
initiative. 

1  Ibid.  Art.  13.  This  article  states  that  the  Bundesrat  may  be  thus 
summoned  for  the  "preparation  of  the  work."  No  doubt  has  been  cast, 
in  practice,  on  the  right  to  summon  the  Bundesrat  for  the  undertaking  of  such 
work  as  might  be  carried  on  without  the  aid  of  the  Reichstag,  e.g.  the  is- 
suance of  ordinances,  etc.,  under  Art.  7,  Cls.  1,2.  The  Bundesrat  may  also 
remain  in  session  after  the  closing  of  the  Reichstag.  Meyer,  Staatsr.  p.  391, 
note  4;  Arndt,  Komm.  p.  139. 

4  These  Standing  Orders  may  be  found  in  Protokolle  des  Bundesrals, 
1880,  Anlage  zu  §  323;  also  in  Triepel,  pp.  227  ff.  Triepel  calls  attention 
to  two  reprints  which  are  inaccurate:  Allgemeine  Zeitung,  1880,  No.  142, 
p.  2048,  and  Von  Poschinger's  Ftirst  Bismarck  und  der  Bundesrat,  IV.  p. 
205. 

1  RVcrf.  Art.  15. 


THE  BUNDESRAT  53 


must  be  a  member  of  that  body.  The  Imperial  Constitution 
designates  the  Chancellor  as  the  presiding  officer,  hence  the 
Chancellor  must  be  a  member  of  the  Bundesrat.  But  the 
Constitution  also  states  that  the  Chancellor  is  appointed  by 
the  Emperor.  The  Emperor,  however,  as  Emperor,  has  no 
right  to  appoint  a  delegate  to  the  Bundesrat.  He  may  do  this 
only  in  his  capacity  as  king  of  Prussia.  Hence  it  follows 
that  the  Imperial  Chancellor  must  always  be  a  Prussian 
delegate  to  the  Bundesrat.  This  is  made  clearer  still  by  Figure 
IX  of  the  Bavarian  Schlussprotokoll,  to  which  reference  is 
made  below.1 

The  Imperial  Chancellor  may  appoint,  in  writing,  any 
other  member  of  the  Bundesrat  as  his  substitute,2  in  presiding 
over  and  conducting  the  business  of  the  Bundesrat.  Such 
an  appointment  needs  no  special  assent  on  the  part  of  the 
Emperor.  Should  no  Prussian  delegate  be  available,  the 
right  to  serve  as  such  substitute  falls  to  Bavaria,  according 
to  the  Schlussprotokoll  of  the  November  Treaty  with  that 
State.3  It  must  not  be  inferred,  however,  that  Bavaria  pos- 
sesses in  any  sense  the  Vicepraesidium  of  the  Bundesrat.  If 
a  Bavarian  delegate  should  be  chosen  as  substitute  for  the 
Chancellor  and  should  temporarily  act  as  the  presiding  of- 
ficer of  the  Bundesrat,  the  praesidial  rights  of  Prussia  would 
be  in  no  wise  affected  thereby.  For  these  rights  belong  to 
Prussia.  They  do  not  attach  to  the  chairmanship  of  the 
Bundesrat.  The  momentary  substitution  of  a  Bavarian 

1  See,  in  this  connection,  Laband,  I.  p.  255;  Meyer,  Staatsr.  p.  391,  notes 
6  and  7;    Hanel,  Studien,  I.  pp.  26   ff. ;  Zorn,  Staatsr.  I.  pp.  160  ff. ;   Von 
Ronne,  Pr.  Staatsr.  I.  p.  125.     For  different  views,  see   Hensel,  in  Hirth's 
Annalen,  1882,  pp.  23  ff. ;   Bismarck,  speech  in  Reichstag,  13  March,    1877 
(Sten.  Ber.  p.  127),  and  speech  of  24  January,  1883  (Sten.  Ber.  p.  183)  also 
Gedanken  und  Erinnerungen,  II.  pp.  397  ff. 

2  RVerj.  Art.  15,  Cl.  2. 

3  Schlussprotokoll,  Treaty  of  23  November,  1870  (RGBL  1871,  23),  IX. 


54  THE   GERMAN   EMPIRE 

delegate  for  the  Prussian  leader  of  the  Bundesrat  would, 
therefore,  transfer  no  praesidial  right  whatever,  ascribed,  by 
the  Constitution,  to  Prussia. 

Every  member  of  the  Bundesrat  has  the  right  to  present 
measures  to  that  body,  and  the  Praesidium  is  bound  to  sub- 
mit such  measures  to  discussion.1  A  strict  application  of 
this  principle  would  bar  the  Emperor,  as  Emperor,  from 
introducing  bills  into  the  Bundesrat.  As  king  of  Prussia, 
however,  he  may  initiate  legislation  through  the  Prussian 
members.  In  actual  practice,  an  imperial  initiative  has  de- 
veloped, measures  being  introduced  in  the  Bundesrat  directly 
by  the  imperial  government.2  In  the  various  sessions  of 
the  Bundesrat  the  principle  of  continuity  obtains.  Business 
unfinished  at  the  end  of  one  session  is  resumed  at  that  point 
where  it  was  left  when  the  session  terminated.8  The  Con- 
stitution fixes  no  set  number  as  requisite  for  a  quorum.  Any 
least  number  of  members  is  competent  to  transact  business.4 
In  taking  a  vote,  the  simple  majority  decides  as  a  general 
rule.  To  this  rule,  however,  two  exceptions  must  be  noted : 
amendments  to  the  Constitution  are  to  be  considered  lost  when 
fourteen  votes  in  the  Bundesrat  are  cast  in  the  negative ; 5  and, 
secondly,  where  there  is  a  division  of  opinion  with  respect  to 
proposed  legislation  touching  military  affairs,  the  navy,  the 
tariff  and  the  consumption  taxes  on  salt,  tobacco,  brandy, 
beer,  sugar,  and  syrup,  as  well  as  touching  the  provisions  and 
arrangements  proposed  for  carrying  out  the  tariff  and  tax 
laws,  the  vote  of  Prussia  is  decisive  if  it  is  cast  ki  favor  of 

1  RVcrf.  Art.  7,  Cl.  2. 

2  Laband,  I.   p.  217;   HSnel,  Studien,  I.  p.  42;   Meyer,  Staatsr.  p.  393. 
Compare  Seydel,  Comm.  p.  145;.  and  Fischer,  Das  Recht  d.  D.  Kaisers, 
Berlin,  1895,  pp.  148  ff.    Such  measures  are  treated  as  Prussian. 

'  Meyer,  Staatsr.  p.  393.  *> 

*  Ibid.  p.  393;  Laband,  I.  p.  221;  Seydel,  Comm.  p.   135. 

•  RVerf.  Art.  78. 


THE   BUNDESRAT  55 


maintaining  the  status  quo.1  Votes  not  actually  present,  or 
represented  by  proxy,  and  votes  not  instructed,  are  not 
counted.2  In  case  of  a  tie  the  praesidial  vote,  i.e.  Prussia, 
decides.3  Any  delegate  may  appoint  a  delegate  from  any 
other  State  as  his  proxy  in  voting.4  Where  legislative  action 
is  taken  upon  a  subject  which,  according  to  the  provisions  of 
the  Constitution,  does  not  concern  the  whole  Empire,  the 
votes  of  those  States  alone  are  to  be  counted  whose  interests 
are  affected  by  the  matter  in  question.5 

Out  of  its  midst  the  Bundesrat  chooses  certain  Committees, 
some  of  them  being  provided  for  by  the  Constitution,6  others 
by  the  Standing  Orders.7  These  Committees,  which  are  per- 
manent in  character,  are  twelve  in  number  and  are  styled 
as  follows:  i.  Army  and  Fortifications;  2.  Naval  Affairs; 
3.  Tariff  and  Taxation;  4.  Trade  and  Commerce;  5.  Rail- 
roads, Post,  and  Telegraph;  6.  Judicial  Affairs;  7.  Ac- 
counts; 8.  Foreign  Affairs;  9.  Alsace-Lorraine;  10.  Con- 
stitution; ii.  Standing  Orders ;  12.  Railroad  Freight  Rates. 
In  each  of  these  Committees,  at  least  four  States,  besides 
Prussia,  must  be  represented.  No  State  may  have  more  than 
one  vote  in  any  Committee.8 

In  the  Committee  on  the  Army  and  Fortifications,  Bavaria, 
under  the  Constitution,  and  Wiirttemberg  and  Saxony,  under 

1  RVerf.  Arts.  5  and  37. 

2  Ibid.  Art.  7,  Cl.  3. 

3  Ibid.  Art.  7,  Cl.  3.     This  right  to  decide  in  case  of  a  tie  is  a  special 
privilege  of  Prussia,  and  does  not  pass  to  the  temporary  presiding  officer,  e.g. 
the  Bavarian  substitute  for  the  Chancellor. 

4  Geschajtsord.   §  2,  Cl.  2,  reads:  "  Jeder  stimmiiihrende  Bevollmachtigte 
kann  in  Verhinderungsfallen  den  Bevollmachtigten  eines  anderen  Bundes- 
staats  substituiren,  die  Substitution  gilt  jedoch  nie  langer  als  fur  eine  Sit- 
zung." 

5  RVerf.  Art.  7,  Cl.  4.     See,  in  this  connection,  Laband,  I.  pp.  228-229; 
Meyer,  Staatsr.  p.  394;    Zorn,   Staatsr.  I.  p.  151;    Seydel,  Jahrb.  p.   283, 
Comm.  pp.  147  ff. 

8  RVerf.  Art.  8.  7  Geschaftsord.  §  17.  8  RVerf.  Art.  8,  Cl.  2. 


56  THE  GERMAN  EMPIRE 

the  Military  Conventions,  have  each  a  permanent  seat.1  The 
remaining  members  of  the  Committee,  and  the  members  of  the 
Committee  on  Naval  Affairs,  are  appointed  by  the  Emperor. 
With  the  exception  of  the  Committee  on  Naval  Affairs,  and 
the  Committee  on  Foreign  Affairs,  each  Committee  consists 
of  seven  members.  The  two  Committees  mentioned  as  ex- 
ceptions have  five  members  each.  With  the  exception  of 
these  same  two  Committees,  the  members  of  the  several 
Committees  are  elected  by  secret  ballot.2  In  selecting  mem- 
bers of  these  Committees,  it  is  not  the  rule  to  name  the  indi- 
vidual who  is  to  sit  upon  the  Committee,  but  to  designate  the 
State  that  shall  be  represented.  In  all  the  Committees, 
save  that  on  Foreign  Affairs,  Prussia  is  not  only  to  be  rep- 
resented, but  is  to  have  the  chairmanship.  Members  of  the 
Committees  are  selected  at  each  session  of  the  Bundesrat, 
or  every  year  at  any  rate,  and  the  former  members  are  eligible 
to  reelection.*  The  business  of  the  Committees  consists 
mainly  in  preparing  reports  for  the  Bundesrat,  and  they  have 
the  right  to  call  upon  such  officials  as  may  be  necessary  to 
assist  them.4  The  Committee  on  Foreign  Affairs  occupies  a 
somewhat  unique  position.  Its  main  function  is  to  furnish  the 
Chancellor  information  with  reference  to  matters  of  foreign 
policy,  in  other  words,  to  furnish  the  Chancellor  with  infor- 
mation which  he  already  possesses.  Prussia,  since  the 
Chancellor  is  a  Prussian  Minister,  needs  no  representation 
upon  the  Committee  on  Foreign  Affairs,  and  is  not  repre- 
sented upon  it.  The  Committee  consists  of  delegates  from 
Bavaria,  Saxony,  and  Wiirttemberg,  with  two  additional  mem- 
bers, the  empty  honor  of  chairmanship  falling  to  Bavaria.5 

1  RVerf.  Art.  8,  Cl.  2;  Military  Conv.  with  Wflrtt.,  21-25  November, 
1870,  Art.  15;  and  with  Saxony,  7  February,  1867,  §  2. 

*  Geschajtsord.  §  18.          »  RVerf.  Art.  8,  Cl.  2.          *  Ibid.  Art.  8,  Cl.  4. 
1  Ibid.  Art.  8,  Cl.  3.    Compare  Laband,  I.  pp.  268,  230  ff. 


THE  BUNDESRAT  $? 


The  member  of  the  Bundesrat  is  not  an  imperial  official. 
He  is  rather  the  Charge  d'affaires  of  the  State,  which  he 
represents  with  full  power.  This  fact  receives  a  recognition 
in  the  Constitution.  Article  10  reads:  "The  Emperor  is 
bound  to  guarantee  the  customary  diplomatic  protection  to 
the  members  of  the  Bundesrat."  The  members  of  the 
Bundesrat,  together  with  such  members  of  their  household 
as  are  not  Prussian,  enjoy  the  privilege  of  exterritoriality. 
They  are  therefore  exempted  from  Prussian  taxation  and 
from  Prussian  jurisdiction.1  Moreover,  they  may  not  be 
summoned  as  witnesses  or  as  experts,  during  their  residence 
at  the  place  where  the  Bundesrat  meets,  and  brought  to 
another  place,  without  the  consent  of  the  ruler  of  their 
State.2  Their  general  status  before  the  courts  is  determined 
by  §  15  of  the  Code  of  Civil  Procedure  and  §  n  of  the 
Code  of  Criminal  Procedure. 

No  one  can  be  at  the  same  time  a  member  of  the  Bundesrat 
and  a  member  of  the  Reichstag.3  This  does  not  mean  that  a 
member  of  the  Bundesrat  may  not  be  elected  to  the  Reichstag. 
The  election  of  a  member  of  the  Bundesrat  to  the  Reichstag 
would  not  be  invalid  per  se.  But  a  member  of  the  Bundesrat 
can  accept  a  seat  in  the  Reichstag  only  by  giving  up  his  seat 
in  the  Bundesrat.  In  other  words,  the  Constitution  does  not 
deny  the  eligibility  of  the  member  of  the  Bundesrat,  but 
asserts  the  incompatibility  of  membership  in  the  Bundesrat 
and  Reichstag.* 

It  has  already  been  shown  that  the  German  Empire,  though 
made  up  for  the  most  part  out  of  monarchies,  is  not  itself  a 
monarchy.  It  is  true  that  the  Emperor  performs  certain 

1  GVG.  §§  18-20;  Seydel,  Jahrb.  p.  280;  Laband,  III.  p.  369. 

2  CivilprozessordnKng,  §§  382,    Cl.  2,  402;  Strafprozessordnung,  §  49, 
Cl.  2,  72. 

3  RVerf.  Art.  9.  «  Laband,  I.  p.  291. 


58  THE  GERMAN  EMPIRE 

functions  and  exercises  certain  authorities,  which,  in  a 
monarchical  State,  usually  fall  to  the  monarch.  But,  as  a 
matter  of  fact,  all  authority  exercised  by  the  Emperor  is  dele- 
gated authority.  In  case  of  doubt  as  to  where  the  seat  of 
power  lies  in  any  given  case,  the  presumption  is  always  against 
the  Emperor,  not  in  his  favor.  He  is  not  the  "Trdger  der 
Staatsgewalt."  In  other  words,  sovereignty  does  not  lodge 
with  him.  The  "bearer  of  the  power  of  the  State"  is  the 
Bundesrat.  Sovereignty  lies  in  the  "totality  of  the  allied 
governments."  1 

In  the  general  organization  of  the  German  government,  the 
Bundesrat  plays  a  triple  part.  First  and  foremost,  of  course, 
it  is  an  organ  of  legislation.  But  its  activity  is  not  exhausted 
by  this  function.  It  is  an  administrative  organ  and  a  judi- 
cial organ  as  well.  The  main  work  of  the  Bundesrat,  under 
the  Constitution,  is  legislative.  Primarily,  therefore,  it  is 
an  organ  for  making  laws.  Its  cooperation  in  matters  that 
properly  belong  to  the  government,  i.e.  matters  which  deal 
with  the  administration  and  application  of  the  law  rather 
than  the  making  of  it,  is  the  exception  rather  than  the  rule, 
and  extends  only  so  far  as  is  laid  down  by  law.2  Each  of 
these  three  functions  must  be  briefly  treated  in  turn. 

I.  The  legislative  junction  of  the  Bundesrat.  In  Art.  5 
of  the  Imperial  Constitution  it  is  expressly  declared  that 
"the  legislative  power  of  the  Empire  shall  be  exercised  by  the 
Bundesrat  and  Reichstag."  This  is  further  supplemented  by 
Art.  7,  Cl.  i,  i),  which  reads,  "The  Bundesrat  shall  take  action 
upon  the  measures  to  be  proposed  to  the  Reichstag,  and  upon 

1  Bismarck,  in  a  speech  before  the  Reichstag,  19  April,  1871,  said:  "  Die 
Souveranetat  ruht  nicht  beim  Kaiser;  sie  ruht  bei  der  Gesamtheit  der  ver- 
bundeten  Regierungen."  See  Kohl,  Polit,  Reden  des  Fiirsten  Bismarcks,  V. 
pp. 39  ff. 

1  Laband,  I.  p.  232.     Compare  Seydel,  Jahrb.  p.  284. 


THE  BUNDESRAT  59 


the  resolutions  passed  by  that  body."  Further,  all  laws 
must  be  engrossed  and  published  by  the  Emperor.  The 
Bundesrat,  therefore,  is  not  the  sole  organ  of  legislation.  No 
law  can  be  promulgated  without  the  consent  of  the  Reichstag. 
This  consent,  however,  does  not  in  any  sense  partake  of  the 
nature  of  a  sanction.  It  is  rather  a  necessary  condition  pre-. 
liminary  to  the  imparting  of  the  sanction.  The  sanction 
itself  is  an  act  of  the  Bundesrat. 

While  the  right  of  initiation  belongs  to  the  Reichstag  as 
well  as  to  the  Bundesrat,  measures,  as  a  general  rule,  are  in- 
troduced in  the  latter  body.  A  bill  which  has  passed  the 
Bundesrat  is  transmitted  to  the  Reichstag  for  its  action,  and  is 
then  returned  to  the  Bundesrat  for  final  determination.  In 
other  words,  the  bill  does  not  pass  from  the  Reichstag  to  the 
Emperor  for  his  signature.  It  goes  back  to  the  Bundesrat 
for  a  second  action.  In  this  second  action  the  measure 
receives  the  sanction,  without  which  it  is  no  law.  The 
sanction,  therefore,  is  not  imparted  by  the  Emperor,  but  by 
the  Bundesrat.  "As  in  an  individual  State  the  monarch  is 
the  bearer  of  the  power  of  the  State,  so  in  the  Empire  the 
totality  of  the  allied  governments  appears  as  the  bearer  of 
the  power  of  the  Empire.  It  is  to  be  regarded  as  the  holder 
of  the  legislative  authority.  Its  sanction  imparts  to  a  measure 
the  character  of  law.  This  totality  of  the  allied  governments 
is  represented,  however,  by  the  Bundesrat.  The  sanction, 
therefore,  takes  place  through  a  resolution  of  the  Bundesrat. 
The  consent  of  the  Reichstag  is  simply  a  prerequisite  to  the 
imparting  of  the  sanction.  Even  a  bill  which  has  been  sent 
by  the  Bundesrat  to  the  Reichstag  and  accepted  by  that  body, 
without  amendment,  needs,  in  order  to  become  law,  the 
further  acceptance  of  the  Bundesrat."  l  In  its  determination 

1  Meyer,  Staatsr.  pp.  523-526.  For  an  extensive  literature  upon  the  sub- 
ject, see  Meyer's  note  4.  Compare  Laband,  II.  p.  31. 


60  THE  GERMAN  EMPIRE 

with  reference  to  measures  to  be  laid  before  the  Reichstag, 
and  with  reference  to  bills  passed  by  that  body,  the  Bundesrat 
is  free  so  far  as  any  legal  restrictions  are  concerned.  It  may 
accept  or  reject  as  it  sees  fit.  So  far  as  legislation  is  con- 
cerned, then,  the  function  of  the  Bundesrat  is  a  double  one : 
it  takes  part  in  determining  the  content  of  the  law,  and  it 
imparts  the  sanction  to  the  law. 

II.  The  administrative  junction  of  the  Bundesrat.  The 
Bundesrat  is  not  an  administrative  authority — "Adminis- 
trative Behorde" —  in  the  strict  sense  of  the  term.1  It 
shares  in  the  administration,  however,  by  means  of  certain 
ordinances  which  it  is  empowered  to  issue,  under  certain 
conditions. 

In  the  first  place,  the  Imperial  Constitution  grants  to  the 
Bundesrat  the  power,  and  lays  it  under  obligation  as  well,  to 
"take  action  upon  the  general  administrative  provisions  and 
arrangements  necessary  to  the  execution  of  the  imperial 
laws,  so  far  as  no  other  provision  has  been  made  by  law."2 
That  is  to  say,  where  a  law  does  not,  hi  the  text  of  it,  make  the 
provisions  necessary  to  its  execution,  and  does  not  delegate 
the  power  to  make  such  general  administrative  arrangements 
to  some  other  organ,  the  determination  of  such  general  ad- 
ministrative provisions  falls  to  the  Bundesrat. 

In  the  second  place,  the  Constitution  further  provides  that 
the  Bundesrat  shall  take  action  with  respect  to  the  "remedy- 
ing of  defects  which  may  be  disclosed  in  the  execution  of  the 
imperial  laws  or  of  the  aforesaid  provisions  and  arrange- 
ments." The  idea  seems  to  be  this:  the  Bundesrat  has  a 


1  Laband,  I.  p.  234,  note  i,  cites  Reichsgericht  (Enlsch.  in  Slrafsachen, 
Bd.  VII.  p.  382)  in  which  the  court  holds  that  the  Bundesrat  is  not  a 
Reichsbehorde  in  the  sense  in  which  that  tennis  used  in  StCB.  §§  196,  197, 
but  a  polilische  Korperschajt. 

3  RVerj.  Art.  7,  Cl.  i,  2). 


THE  BUNDESRAT  6 1 


power  of  curative  action  with  respect  to  certain  formal 
defects  in  the  imperial  laws.  No  authority  is  given  to  the 
Bundesrat  to  remedy  "bad  legislation."  The  remedy  in 
such  cases  is  a  new  law  secured  by  the  ordinary  method  of 
legislation.  The  Bundesrat  has  no  power  to  revise  and 
reconstruct  the  content  of  a  law.  In  other  words,  the  Bundes- 
rat cannot  remedy  unwise  or  vicious  legislation  by  the  mere 
exercise  of  its  ordinance  power  under  the  Constitution. 
Defects  in  the  laws,  however,  arising  from  the  lack  of  adequate 
provision  for  the  execution  of  the  law,  or  from  the  obscurity 
of  such  provision  as  may  have  been  made,  may  be  cured  by 
the  Bundesrat  by  the  issuance  of  ordinances  which  either 
supply  the  administrative  provisions  lacking  or  amend  and 
alter  those  provisions  which  exist.  Such  power  on  the  part 
of  the  Bundesrat  is  implied  in  Art.  7,  Cl.  i,  2),  discussed  in 
the  preceding  paragraph.  Wherein,  then,  does  the  authority 
granted  the  Bundesrat  by  Art.  7,  Cl.  i,  3),  differ  from  that 
granted  by  Cl.  i,  2)?  What  are  the  "defects"  to  be 
remedied  by  the  Bundesrat,  which  are  not  covered  by  the 
power  to  issue  "general  administrative  ordinances"?  In  a 
word,  the  difference  would  appear  to  lie  here :  Clause  1,2), 
provides  for  the  remedying  of  defects  in  the  form  of  the 
laws.  By  this  clause  the  formal  administrative  defects  of 
the  law  are  to  be  cured.  Clause  i,  3),  goes  to  the  cure  of 
defects  which  are  discovered  in  the  actual  execution  of  the 
law.  The  Bundesrat,  that  is,  may  not  only  supply  by  ordi- 
nance certain  administrative  regulations  which  may  be 
wanting  in  the  law,  and  better  such  regulations  as  may  be 
defective  or  obscure,  but  may  also  exercise  a  sort  of  super- 
vision over  the  execution  of  the  law.  The  meaning  of  Cl.  i, 
3),  can  scarcely  be  understood  apart  from  a  knowledge 
of  its  historical  development.  This  historical  development 
is  briefly  traced  by  Laband,  I.  pp.  286  ff.,  whose  line 


62  THE  GERMAN  EMPIRE 

of  argument  is  closely  followed  in  the  succeeding  para- 
graphs. 

In  the  old  Zollverein  all  the  States  composing  the  Union 
were  sovereign  and  independent.  Each  State  levied  and 
administered  its  own  customs  and  revenues.  It  was  to 
the  interest  of  each  State  that  these  matters  should  be  ad- 
ministered in  conformity  to  the  provisions  of  the  Customs 
Union  Treaty.  To  this  end  an  arrangement  was  developed 
by  which  the  tariff  and  revenue  authorities  of  the  several 
States  came  under  the  control  of  certain  plenipotentiaries, 
appointed  by  the  States.  When  these  plenipotentiaries 
discovered  a  misapplication  of  the  provisions  of  the  treaty 
or  a  defect  in  the  execution  of  its  stipulations,  due  notice 
was  given,  and  in  case  the  matter  was  not  remedied  by  the 
proper  authorities  of  the  State  involved,  it  was  brought  to 
the  attention  of  the  Conference  of  the  Customs  Union  for  its 
discussion  and  final  adjustment.  Since,  from  the  interna- 
tional character  of  the  Zollverein,  unanimous  consent  was 
requisite  to  the  validity  of  any  action  taken  by  the  Conference, 
there  was  no  necessity  for  a  careful  definition  of  its  com- 
petence. It  seemed  sufficient  to  assign  to  this  Conference 
of  delegates,  "the  negotiations  with  respect  to  all  complaints 
and  defects  which  were  noticed  in  relation  to  the  execution  of 
the  fundamental  agreement."1 

On  the  founding  of  the  North  German  Confederation, 
the  administrative  organization  which  had  thus  arisen  in  the 
Zollverein  remained  essentially  unchanged,  except  that  the 
delegates  to  whom  were  assigned  the  control  or  inspection  of 
the  customs  and  revenue  matters  in  the  several  States  were 
now  appointed  by  the  Praesidium.  In  Art.  37  of  the 
Constitution  of  the  North  German  Confederation,  the  Bundes- 
rat  was  given,  in  Cl.  i,  i),  a  cooperation  in  the  issuing  of 

1  Customs  Union  Treaty  of  16  May,  1865,  Art.  34  a. 


THE  BUNDESRAT  63 


tariff  and  tax  laws  and  in  the  conclusion  of  treaties  affecting 
commerce;  in  Cl.  i,  2),  it  was  empowered  to  issue  ad- 
ministrative ordinances,  and  in  Cl.  i,  3),  it  was  granted  the 
power  to  take  action  "with  respect  to  defects  which  might 
appear  in  the  execution  of  the  common  legislation  (Art.  35)." 
Article  35  refers  wholly  to  the  power  of  the  Bund  to  legislate 
in  customs  matters  and  in  matters  relating  to  taxation.  The 
power  of  the  Bundesrat,  therefore,  to  cure  "defects"  would 
seem  to  be  limited  to  those  defects  which  developed  in  the 
execution  of  the  tariff  and  tax  laws  falling  within  the  com- 
petence of  the  Confederation.  Article  8,  §  12,  of  the  Cus- 
toms Union  Treaty  of  8  July,  1867,  repeats  the  same  declara- 
tions, and  they  are  taken  up  into  the  Imperial  Constitution 
with  such  changes  only  as  were  necessary  in  the  revision  of 
it.  The  Bundesrat  of  the  Zollverein  was  at  the  same  time 
the  direct  heir  of  the  Conference,  only  freed  from  the  necessity 
for  unanimous  consent  in  order  to  conclude  business. 

In  Art.  36,  Cl.  2,  the  Imperial  Constitution  grants  to 
the  Emperor  the  right  to  supervise  the  carrying  out  of  the 
proper  legal  provisions  touching  matters  of  tariff  and  taxa- 
tion, by  the  State  authorities.  This  supervision  is  exercised 
through  officials  appointed  by  the  Emperor  after  coming  to 
an  understanding  with  the  committee  of  the  Bundesrat  on 
customs  and  revenues.  These  officials  are  coordinated  with 
the  customs  and  tax  officials  and  with  the  Directive  Boards 
of  the  State.  Clause  3  of  Art.  36  of  the  Imperial  Consti- 
tution says,  "Reports  made  by  these  officials  with  respect  to 
defects  in  the  execution  of  the  common  (gemeinschaftliche) 
laws  (Art.  35)  shall  be  laid  before  the  Bundesrat  for  action." 

There  is  no  question  here  as  to  the  relation  between  the 
Emperor  and  the  Bundesrat.  So  far  as  the  supervision  of  the 
individual  States  is  concerned,  the  Emperor  has  the  right  to 
appoint  the  imperial  customs  inspectors  and  deputies,  and 


64  THE  GERMAN  EMPIRE 

to  place  them  side  by  side  with  the  officials  of  the  State. 
The  material  decision,  however,  over  the  reports  which  these 
officials  make,  and  the  securing  of  a  fair  and  equitable  ad- 
ministration and  interpretation  of  the  customs  and  revenue 
laws,  is  handed  over  to  the  Bundesrat.  In  this  respect  the 
Bundesrat  has  taken  the  place  of  the  old  Customs  Conference, 
save  that  its  decisions  no  longer  have  the  character  of  inter- 
national treaties,  but  rather  that  of  the  findings  of  a  supreme 
authority.  In  customs  and  revenue  matters,  the  Bundesrat 
is  a  central  administrative  board  of  the  Empire,  a  board 
of  supervision  standing  over  the  administrative  authorities 
of  the  several  States,  and  which,  like  the  supreme  adminis- 
trative court,  sees  to  it  that  the  self -administration  left  to  the 
individual  States  shall  not,  in  matters  of  customs  and  revenue, 
lead  to  an  unfair  administration  or  interpretation  of  the 
imperial  laws. 

In  the  revision  of  the  Imperial  Constitution  which  was 
agreed  upon  at  Versailles  during  the  transactions  with  the 
South  German  States,  in  the  addition  to  the  declaration  con- 
tained in  the  Customs  Union  Treaty,  Art.  7  of  the  Con- 
stitution was  determined  upon,  fixing  the  matters  to  be  sub- 
jected to  the  action  of  the  Bundesrat,  and  is  incorporated  in 
the  present  wording  of  that  instrument.  Even  before  the 
conclusion  of  the  treaty  with  the  South  German  States,  the 
practice  had  arisen  in  the  North  German  Confederation  of 
laying  before  the  Bundesrat  cases  in  which  there  was  a  ques- 
tion respecting  the  administration  of  the  imperial  laws  or 
doubts  as  to  the  application  of  them. 

It  will  be  seen,  therefore,  that  the  powers  of  the  Bundesrat 
have  not  been  essentially  extended  by  Cl.  i,  3),  of  Art.  7 
of  the  Imperial  Constitution.  They  have,  however,  acquired 
a  constitutional  basis  which,  under  the  Constitution  of  the 
North  German  Confederation,  they  possessed  only  with 


THE  BUNDESRAT  65 


reference  to  customs  and  revenue  matters.  The  matter  may 
be  summed  up  in  a  word  denning  the  relation  of  the  Emperor 
to  the  Bundesrat  with  respect  to  supervision  of  the  execution 
of  the  laws.  The  Emperor  appoints  the  officials  necessary 
for  supervising  the  acts  of  the  several  States  in  carrying  out 
the  imperial  laws;  while  the  Bundesrat  renders  the  material 
decision  with  respect  to  the  interpretation  or  application 
of  the  imperial  laws,  or  with  respect  to  some  general  provi- 
sion for  curing  defects  which  may  emerge  in  the  execution  of 
imperial  legislation.  This  remedy  is  applied,  of  course, 
through  the  Imperial  Chancery. 

It  need  scarcely  be  added  that  the  power  of  the  Bundesrat 
does  not  extend  so  far  as  to  supersede  or  supplant  the  func- 
tions and  authority  of  other  imperial  organs,  especially  of 
those  imperial  boards  whose  competence  extends  to  the 
rendering  of  judicial  decisions  in  administrative  matters 
and  in  suits  at  law.  The  competence  of  the  Bundesrat  finds 
a  limit  in  the  right  of  self-administration  of  the  individual 
State.  The  Bundesrat  does  not  constitute  a  superior  in- 
stance above  the  central  authorities  of  the  States,  before 
which  may  be  drawn  individual  cases  for  definite  determi- 
nation. The  Bundesrat  cannot  set  aside  a  judgment  of  the 
State,  nor  can  it  either  convict  or  acquit.  It  has  no  power  to 
instruct  the  authorities  of  the  individual  State.  It  can  only 
make  claim  of  the  right  to  decide  how  far  the  general  duty 
of  every  State  to  observe  the  imperial  laws  bears  upon  the 
special  point  laid  before  it.1 

Further,  the  Bundesrat  performs  a  part  in  the  appointment 
of  certain  imperial  officials.  In  no  case  does  the  Bundesrat 
appoint.  That  is  the  prerogative  of  the  Emperor.  But  in 
certain  classes  of  officials  the  Bundesrat  directly  chooses  the 

1  See  further,  with  respect  to  the  ordinance  power  of  the  Bundesrat,  Meyer, 
Staatsr.  pp.  540  ff. ;  Hanel,  Staatsr.  I.  pp.  289  ff. 

F 


66  THE  GERMAN  EMPIRE 

persons  to  occupy  the  position,  while  the  Emperor  goes 
through  the  merely  formal  ceremony  of  appointing  the 
individuals  thus  selected.  In  other  cases,  the  Emperor 
appoints  by  and  with  the  consent  of  the  Bundesrat  or  one  of 
its  committees.1 

In  certain  governmental  acts  of  the  Emperor,  the  Bundesrat 
has  also  a  power  of  limitation.  The  consent  of  the  Bundesrat 
is  necessary  in  declaring  war  unless  an  attack  has  been  made 
upon  the  territory  or  coast  of  the  Empire ; 2  and  in  concluding 
treaties  with  foreign  States,  so  far  as  they  relate  to  matters 
which,  under  Art.  4  of  the  Imperial  Constitution,  fall 
within  the  competence  of  imperial  legislation.3  The  consent 
of  the  Bundesrat  is  also  required  in  carrying  out  an  "execu- 
tion" against  one  of  the  States  of  the  Empire,4  and  in  dis- 
solving the  Reichstag? 

The  Bundesrat  also  occupies  a  peculiar  position  with 
respect  to  the  financial  affairs  of  the  Empire.6  The  fixing 
of  the  imperial  budget  in  the  form  in  which  it  is  to  be  laid 
before  the  Reichstag,  as  well  as  the  decision  with  respect  to 
amendments  proposed  by  that  body,  the  granting  of  a  loan 
as  well  as  the  assumption  of  obligations  which  shall  burden 
the  Empire,  fall  within  the  scope  of  the  activity  of  the  Bundes- 
rat, inasmuch  as  matters  of  this  sort  are  determined  by  way 
of  legislation.  Moreover,  the  Bundesrat  has  to  audit  the 
accounts  which  the  several  States  carry  with  the  Empire  in 
matters  of  customs  and  revenue,  and  to  fix  the  amount  which 

1  See  RVerf.  Art.  36  and  Art.  56.  Also  Law  of  4  July,  1688  (BCBl. 
P-433)>§  2;  GVG.  §  127  and§  150;  Law  of  6  June,  1870  (BGBl.  p.  368), 
§  42;  31  March,  1873  (RGBl.  p.  68),  §  39;  23  May,  1873  (RGBl.  p.  120), 
|li;  Bank  Law  of  14  March,  1875  (RGBl.  p.  184),  §  27,  Cl.  3;  Law  of  6 
July,  1884  (RGBl.  p.  102),  §  87;  Stock  Exchange  Law  of  22  June,  1896 
(RGBl.  p.  157),  §  3  and  §  17,  Cl.  2.  « Ibid.  Art.  19. 

z  RVerf.  Art.  n,  Cl.  i.  •  Ibid.  Art.  24. 

» Ibid.  Art.  ii,  Cl.  2.  •  See  Laband,  I.  p.  241. 


THE   BUNDESRAT  6/ 


is  due  to  the  Imperial  Treasury  from  the  treasury  of  each 
State.1  The  Imperial  Chancellor  is  bound  to  lay  before  the 
Bundesrat,  for  its  discharge,  an  annual  statement  of  the 
expenditure  of  all  the  imperial  income.2  It  is  further  pro- 
vided by  law  that  three  members  of  the  Bundesrat  shall  belong 
to  the  Imperial  Debt  Commission 3  and  that  the  Bundesrat 
shall  appoint  three  members  of  the  Board  of  Governors  of 
the  Imperial  Bank,  as  well  as  nominate  its  president  and  the 
members  of  its  directorate.  The  Bundesrat  may  designate 
certain  of  the  larger  cities  in  which  a  branch  of  the  Imperial 
Bank  may  be  located.  The  by-laws  of  the  Bank  require  the 
consent  of  the  Bundesrat  before  they  are  promulgated  by  the 
Emperor.4  The  disposition  of  the  funds  of  the  War  Treasure 
is  made  contingent  upon  the  consent  of  the  Bundesrat,  and 
the  Imperial  Debt  Commission  has  to  make  a  yearly  report 
to  that  body  as  to  the  condition  of  the  funds  in  the  War 
Treasure.5  The  Bundesrat  determines  the  manner  in  which 
gold  shall  be  coined,8  and  has  extensive  powers  in  adjusting 
claims  for  compensation  arising  from  military  requisitions 
in  time  of  war.7  Moneys  received  from  the  sale  of  fortifi- 
cations no  longer  used,  or  from  the  sale  of  real  estate  in  pos- 
session of  the  imperial  administration,  can  be  spent  only 
with  the  consent  of  the  Bundesrat.8 

In  numerous  other  matters  the  imperial  laws  invest  the 
Bundesrat  with  various  powers  in  the  determination  of  special 

1  RVerj.  Art.  39. 

2  Ibid.  Art.  72. 

3  Law  of  19  June,  1868  (BGBl.  p.  339),  §  4. 

4  Law  of  14  March,  1875  (RGBl.  p.  184),  §§  25,  36,  40. 

5  Law  of  ii  November,  1871  (RGBl.  p.  403),  §§  1,3. 
8  Law  of  4  December,  1871  (RGBl.  p.  405),  §§  6,  7. 

'Law  of  13  June,  1873  (RGBl.  p.  129),  §§  16,  20,  23.  Compare  Ordi- 
nance of  i  April,  1876  (RGBl.  p.  137). 

8  Law  of  8  July,  1872  (RGBl.  p.  290),  Art.  4,  and  Law  of  25  May,  1873 
(RGBl.  115),  §  ii. 


68  THE  GERMAN  EMPIRE 

questions.  Nor  is  it  strange  that  the  body  which  stands  at 
the  very  centre  of  the  imperial  system,  the  body  which  repre- 
sents preeminently  the  federal  idea,  should  play  a  large  role 
in  the  settlement  of  all  affairs  which  touch  the  States,  as  such, 
and  the  nation  as  a  whole. 

III.  The  judicial  function  of  the  Bundesrat.  The  author- 
ity granted  to  the  Bundesrat  by  the  Constitution,  with  respect 
to  curing  defects  which  may  develop  in  the  execution  of  the 
laws,  includes  to  a  certain  extent  the  exercise  of  an  adminis- 
trative jurisdiction,  since  such  action  may  involve  a  judg- 
ment on  the  question  as  to  whether  a  provision  of  an  imperial 
law  has  been  properly  interpreted  or  applied.1  As  a  general 
rule,  however,  such  an  action  on  the  part  of  the  Bundesrat 
does  not  have  the  force  of  a  judicial  decision.  The  matter 
is  finally  settled  usually  by  the  competent  State  or  imperial 
administrative  board. 

In  some  instances,  however,  the  Bundesrat  possesses  the 
power  to  issue  decisions  which  amount  practically  to  formal 
decisions  of  an  administrative  court.  For  example,  the 
Law  of  30  May,  1873,*  touching  the  widening  of  the  gates  of 
fortified  towns  and  the  approaches  leading  to  them,  declares 
that  "the  decision  as  to  whether,  and  as  to  what  widenings 
are  necessary  in  the  interests  of  traffic  and  permissible 
from  a  military  standpoint,  shall  be  rendered,  in  last 
instance,  by  the  combined  Committees  of  the  Bundesrat 
for  Trade  and  Commerce  and  for  the  Army  and  Fortifica- 
tions." 

Moreover,  the  Bundesrat  has  the  final  decision  on  appeal 
made  from  a  refusal  to  grant  permission  for  buildings  and 
construction  in  the  naval  ports  of  the  Empire,  and  the  settle- 
ment of  controversies  between  the  Naval  Office  and  the 
government  of  Oldenburg  with  respect  to  the  erection  of 

1  See  Laband,  I.  p.  244.  2  RGBl.  p.  124. 


THE   BUNDESRAT  69 


works  in  the  Oldenburg  territory  of  Jade  harbor.1  It  also 
decides  certain  matters  concerning  the  Imperial  Insurance 
Office,2  and  certain  matters  touching  the  retirement  and  pen- 
sioning of  imperial  officials.3  In  administrative  controversies 
within  the  jurisdiction  of  the  Consular  Courts,  the  decision 
in  first  and  last  instance  is  to  issue  from  the  Bundesrat* 

Article  19  of  the  Constitution  provides  that  where  a  State 
refuses  to  fulfil  its  constitutional  obligations  toward  the  Em- 
pire, it  may  be  compelled  to  perform  its  duties  by  means  of 
an  "execution."  The  decision  as  to  whether  such  an  "exe- 
cution" is  to  be  carried  out  and  how  it  shall  be  done  belongs 
to  the  Bundesrat.  The  execution  is  actually  carried  out  by 
the  Emperor.  The  "  execution  "  is,  in  fact,  an  act  of  adminis- 
trative justice.  It  involves  a  judicial  decision  on  the  part  of 
the  Bundesrat  as  to  whether  the  State  has  fulfilled  its  obliga- 
tions as  a  member  of  the  Empire.  An  affirmative  decision 
partakes  of  the  nature  of  a  judicial  sentence:1  In  fact,  as 
Hanel  observes,  there  is  a  double  decision;  the  judgment 
which  legally  determines  the  constitutional  duty  of  the  State 
in  the  matter  under  consideration,  and  the  executory  judg- 
ment, in  case  it  is  found  justifiable,  which  in  this  particular 
instance  presumes  that  the  State  has  not  satisfied  fully  the 
prior  decision  as  to  its  constitutional  duty  in  the  premises.6 

Again,  the  Bundesrat  is  the  highest  appellate  instance  in 
case  a  State  refuses  or  denies  justice.7  Article  77  of  the  Con- 

1  Law  of  19  June,  1883  (RGBl.  p.  105),  §§  3,  5. 

2  Law  of  30  June,  1900  (RGBl.  p.  335),  §§  39,  50,  also  28. 

3  Law  of  31  March,  1873  (RGBl.  p.  61),  §§  39,  51,  52,  66,  68. 

4  Law  concerning  Consular  Jurisdiction,  7  April,  1900  (RGBl.  p.  213), 
§  23,  Cl.  2. 

'Laband,  I.  p.  245,  and  in  Hirth's  Annakn,  1873,  pp.  485-486;  Arndt, 
Komm.  p.  150;  compare  also  Seydel,  Jahrb.  pp.  287  ff.,  and  Contm.  p.  189. 
In  answer  to  Seydel,  see  Meyer,  Staatsr.  Sec.  212,  note  14. 

B  Hanel,  Staatsr.  I.  p.  448. 

7  See  Laband,  I.  p.  245,  note  4 ;  Hanel,  Staatsr.  I.  pp.  736  ff . 


THE  GERMAN  EMPIRE 


stitution  reads,  "If,  in  one  of  the  States  of  the  Union,  justice 
shall  be  denied,  and  no  adequate  relief  can  be  secured  by 
legal  measures,  it  shall  be  the  duty  of  the  Bundesrat  to  receive 
substantiated  complaints  concerning  the  denial  or  obstruction 
of  justice,  which  are  to  be  tested  by  the  constitution  and  the 
existing  laws  of  the  respective  States  of  the  Union,  and  there- 
upon to  secure  judicial  remedy  at  the  hands  of  the  State 
government  which  has  given  occasion  for  the  complaint." 
In  making  its  decision  in  such  a  case,  the  Bundesrat  has  sim- 
ply to  follow  the  principles  of  law,  and  is  bound  by  the  terms 
of  Art.  77  to  decide  such  complaints  in  accordance  with 
"the  constitution  and  laws  of  the  States  concerned."  The 
Bundesrat  has  a  right  to  secure  the  opinion  of  a  court  or  of 
other  professional  experts  in  the  matter.1  The  determination 
of  the  question  as  to  whether  the  state  of  facts  set  forth  in  the 
complaint  is  proven,  is  a  judicial  decision. 

According  to  the  provisions  of  Art.  76,  Cl.  i,  of  the  Con- 
stitution, the  Bundesrat  may  determine  controversies  between 
the  several  States,  in  so  far  as  these  disputes  do  not  fall 
within  the  sphere  of  private  law,  and  hence  within  the 
jurisdiction  of  the  competent  courts.  In  taking  cognizance 
of  such  controversies,  the  Bundesrat  does  not  act  on  its  own 
initiative.  It  acts  only  on  the  appeal  of  one  of  the  parties.2 
"Article  76  does  not  propose  to  clothe  the  Bundesrat  with 
exclusive  jurisdiction  over  controversies  between  the  German 
States.  It  would  simply  insure  a  means  by  which  peace  may 

1  Laband,  I.  p.  245,  note  5.  On  account  of  the  regulation  of  the  judicial 
organization  and  procedure  by  imperial  law,  Art.  77  has  lost  its  practical 
significance  so  far  as  the  ordinary  controversial  jurisdiction  is  concerned. 
See  further  Hanel,  I.  pp.  736  ff. 

1  RVerf.  Art.  76,  Cl.  i.  The  Bundesrat  has  taken  the  place  of  the  old 
Austragalinstanz,  under  the  former  Bund.  Article  76,  Cl.  i,  is  based  on  Art. 
ii,  Cl.  4,  of  the  Bundesakt  of  8  June,  1815.  Von  Meyer,  Corp.  Jur.  Conjoed. 
II.  p.  5 ;  also  Binding,  Staaisgrundgesetze,  Heft  3,  p.  28. 


THE  BUNDESRAT  71 


be  preserved  among  the  States  in  all  cases.  And,  since  war 
between  the  States  of  the  Empire  is  absolutely  barred,  there 
must  be  an  instance  with  power  to  settle  differences  when  all 
other  permissible  means  of  peaceful  solution  have  been  ex- 
hausted. Hence  the  jurisdiction  of  the  Bundesrat  is  not  set 
up  if  neither  of  the  contesting  States  requests  its  interfer- 
ence." l 

The  controversies  which  may  thus  come  before  the  Bundes- 
rat for  settlement,  under  the  Constitution,  are  contests  be- 
tween States  as  such.  Disputes  over  internal  constitutional 
questions  and  controversies  over  the  private  rights  of 
princes  would  not  ordinarily  fall  within  the  terms  of  Art. 
76,  Cl.  i,  though  circumstances  may  be  easily  conceived  in 
which  they  would  properly  come  before  the  Bundesrat  for 
decision.2 

"In  disputes  relating  to  constitutional  matters,  in  those 
States  of  the  Union  whose  constitution  does  not  designate 
an  authority  for  the  settlement  of  such  controversies,  the 
Bundesrat  shall,  at  the  request  of  one  of  the  parties,  endeavor 
to  effect  an  amicable  settlement,  or,  if  this  is  unsuccessful, 
to  settle  the  matter  by  imperial  legislation."3  The  inter- 
ference of  the  Bundesrat  is  made  contingent  here  upon  the 
appeal  of  one  of  the  parties  to  the  controversy.  If,  however, 
the  dispute  should  be  of  such  a  nature  that  the  State  was 
prevented  from  fulfilling  its  proper  duties  under  the  Con- 
stitution, the  Bundesrat  might  unquestionably  interfere  on 
its  own  initiative,  —  not  under  Art.  76,  Cl.  2,  but  under 
Art.  19  of  the  Constitution.4  By  "disputes  relating  to  con- 

1  Laband,  I.  p.  247. 

2  If,  for  instance,  they  involved  the  fulfilment  of  treaties  between  the  States, 
or  if  claims  were  made  by  one  State  to  part  of  the  territory  or  domain  of  an- 
other State.     See  Hanel,  Staatsr.  I.  p.  573. 

3  RVerf.  Art.  76,  Cl.  2.  *  Laband,  I.  p.  248. 


72  THE  GERMAN   EMPIRE 

stitutional  matters "  are  meant  controversies  arising  between 
the  government  and  the  "Estates"  (Stande).1 

It  may  be  laid  down  as  the  principle  controlling  the  action 
of  the  Bundesrat  that  in  all  cases  where  the  dispute  affects 
merely  the  internal  affairs  of  the  individual  State,  and 
does  not  affect  the  relation  of  the  State  to  the  Empire,  the 
Bundesrat  may  not  interfere,  unless  requested  to  do  so  by 
one  of  the  parties  concerned.  Nor  may  the  Bundesrat 
intervene  so  long  as  there  remains  an  authority,  under  the 
constitution  of  the  State,  or  under  a  State  law,  vested  with  the 
competence  to  settle  controversies  of  that  nature.  The 
Bundesrat  may  be  appealed  to  by  one  of  the  parties  provided 
no  such  competent  authority  exists,  but  it  is  not  the  sole  arbi- 
trator in  the  settlement  of  controversies  over  the  internal 
affairs  of  the  State.  The  parties  may  attempt  to  reach  a 
settlement  through  an  arbitrator  agreed  upon  between  them. 
In  such  case  the  Bundesrat  has  no  right  to  interfere  on  its 
own  initiative.  The  right  of  the  Bundesrat  to  assume  juris- 
diction is  merely  a  contingent  right,  and  becomes  operative 
only  through  the  appeal  of  one  of  the  parties. 

If  the  Bundesrat  is  not  able  to  arrange  an  amicable  settle- 
ment of  the  matter  under  dispute,  a  final  determination  may 
be  had  by  means  of  imperial  law.  In  such  an  event,  the 
Reichstag  shares  in  the  final  adjudication.  Such  a  law  is 
virtually  a  judicial  decision,  and  in  enacting  it  the  legislative 
bodies  perform  a  judicial  function.  It  may  well  be  remarked 
such  an  arrangement  is  scarcely  designed  to  secure  a  purely 
judicial  decision.  The  determination  of  questions  of  rights 
through  legislation  opens  the  door  to  considerations  far 

1  Laband,  I.  p.  248.  Article  76,  Cl.  2,  is  based  on  Art.  i  of  the  Bundes- 
beschluss  of  30  October,  1854,  providing  for  a  Court  of  Arbitration  for  the 
settlement  of  controversies  between  the  governments  and  the  Estates.  See 
text  in  Von  Meyer,  Corp.  Jur.  Confoed.  II.  p.  316. 


THE  BUNDESRAT  73 


from  judicial  and  to  motives  which  are  much  more  political 
than  juristic.  Laband  calls  attention  to  this  fact.  "Bundes- 
rat  and  Reichstag,"  he  says,  "have  other  tasks  to  perform 
than  the  rendering  of  judgments,  and  for  this  reason  are 
organized  in  a  manner  least  calculated  to  serve  the  require- 
ments of  the  administration  of  justice.  The  members  of  the 
Bundesrat  vote  according  to  instructions,  and  the  members 
of  the  Reichstag  vote  under  the  influence  of  political  views 
and  tendencies.  When  two  such  bodies,  none  of  whose  gen- 
eral aptitudes  is  suited  to  play  the  role  of  a  judicial  tribunal, 
must  agree  unanimously  in  order  to  decide  a  legal  contro- 
versy, the  probability  is  not  very  great  that  the  decision  will 
be  based  simply  on  legal  grounds." 

This  power  to  adjust  differences,  to  determine  controver- 
sies, by  means  of  imperial  legislation,  in  view  of  the  fact  that 
imperial  law  takes  precedence  of  State  law,  gives  a  wide 
opportunity  for  the  imperial  power  to  meddle  deeply  in  the 
sphere  of  State  power.1  For,  in  the  settlement  of  controver- 
sies by  means  of  imperial  legislation,  an  imperial  law  may  not 
only  set  aside  or  amend  a  constitutional  law  of  the  State, 
but  it  may  amend  and  even  partially  annul  the  constitution  of 
the  State.  In  this  respect,  Laband  calls  attention  to  two 
inferences  worthy  of  note :  first,  that  the  individual  State  is 
not  sovereign  even  in  that  sphere  which  has  been  left  to  its 
own  autonomy,  but  is  actually  subordinate  here  to  the  power 
of  the  Empire;  and  secondly,  that  in  the  activity  of  the 
Bundesrat,  not  alone  in  this  particular  instance,  but  as  a 
whole,  the  legislative,  administrative,  and  judicial  spheres  are 
not  sharply  distinguished  from  one  another,  but  are  merely 
forms  in  which  the  one  indivisible  power  of  the  State,  cor- 
responding to  the  indivisible  personality  of  the  State,  comes  to 
expression  and  is  made  effective.2 

1  See,  in  this  connection,  Seydel,  Comm.  p.  407.        J  Laband,  I.  p.  250. 


74  THE  GERMAN   EMPIRE 

We  come  now  to  a  question  of  considerable  importance, 
viz.  the  question  whether  the  Bundesrat  is  competent  to 
decide  contests  over  succession  to  the  throne  and  over  a 
regency,  and  if  so,  under  what  conditions.  Over  this  question 
a  prolific  literature  has  arisen,  and  it  is  still  a  "Streitjrage" 
among  German  jurists.1  The  recent  discussion  with  respect 
to  the  succession  in  Lippe,  has  given  the  controversy  an  added 
interest  and  importance.  The  writer  of  the  present  volume 
will  content  himself  with  reproducing  the  argument  of  La- 
band  on  the  subject,  as  embodying,  on  the  whole,  the  most 
consistent  view.2  The  notes  of  Laband  are  also  for  the  most 
part  subjoined. 

No  such  competence  of  the  Bundesrat  can  be  derived  from 
Art.  76,  Cl.  2,  of  the  Constitution,  for  the  reason  that  a  contest 

1  In  addition  to  the  discussions  in  the  various  works  on  Staatsrecht,  the 
following  may  be  cited :  Francke,  "Die  Nachfolge  in  Braunschweig  als  Frage 
des  Rechts,"  1884,  in  Deutsche  Zeit-  und  Streitjragen,  13  Jahrg. ;   Bornhak, 
Die  Thronfolge  im  Furstentum  Lippe,   1895;  Seydel,   "  Der  Streit  um  die 
Thronfolge  in  Lippe,"  1898,   Deutsche  Juristenzeitung,  3  Jahrg.,  No.  24; 
Arndt,  "  Die  richtliche  Stellung  des  Bundesrats  in  Verfassungsstreitigkeiten 
der  Bundesstaaten,"  Deutsche  Juristenz.,  3  Jahrg.,  No.  25,  1898;  Kekule  von 
Stradonitz,  "  Erorterungen  iiber  den  gegenwartigen  Stand  der  Lipp.  Thron- 
folgefrage,"  Arch.  f.  off.  R.,  Bd.  14,  1899;  Binding,  "Bundesrat  und  Staats- 
gerichtshoj,"  Juristenz.,  4  Jahrg.,  No.  4, 1899 ;  Laband," Dergegenw.  Stand  der 
Lipp.  Thronfolgefrage,"  Juristenz.,  4  Jahrg.,  No.  18,  1899;  Perels,  Streitig- 
keiten  deutscher  Bundesstaaten  auj  Grund  des  Artikel    76  der  RVerf.,  1900; 
Seydel,  Artikel  76  der  RVerf.  und  der  Lipp.  Thronfolgcstreit,  an   expert 
opinion  furnished  to  the  government  of  Lippe,  found  in  Staatsrechtliche  und 
politische  Abhandlungen  von  Max  von  Seydel,  Neue  Folge,  1902;  Stoerk, 
Die   agnatische   Thronfolge    im     Furstentum   Lippe,    1903;    Triepel,    Der 
Streit  um  die  Thronfolge  im  Furstentum  Lippe,  1903 ;  Krick,  Der  Bundesrat 
als  Schiedsrichter  zwischen  deutschen  Bundesstaaten,  1903;    Fleischer,  Die 
Zustdndigkeit  des  Bundesrats  fur  Erledigung  von  oflentlich-rechtlichen  Streitig- 
keiten,  1904;  Bornhak,  "Zur  lipp.  Thronfolgefrage,"  Annalen  des  deutschen 
Reiches,  1904,  No.  i ;  Sklarek,  Der  Lipp.  Erbfolgestreit  nach  seinem  heutigen 
Stande,    1904;  Anschiitz,  Der  Fall  Friesenhausen,  1904;   Luther,  Thron- 
streitigkeiten  und  Bundesrat,  1904. 

2  Laband,  I.  pp.  250.  ff. 


THE   BUNDESRAT  75 


over  the  succession  to  the  throne  is  not  a  ''dispute  over  con- 
stitutional matters"  in  the  meaning  of  this  provision,  —  it  is 
not  a  controversy  between  government  and  Estates,  but  be- 
tween several  pretenders.  That  Art.  76,  Cl.  2,  does  not 
extend  to  controversies  over  succession  to  the  throne  follows 
from  the  wording  of  the  clause,  "in  those  States  in  whose 
constitution  no  authority  is  designated  for  the  settlement  of 
such  disputes."  Article  76,  Cl.  2,  therefore,  relates  only  to 
"such"  controversies  as  can  be  handed  over  to  an  authority 
for  settlement.  Disputes  over  the  succession  to  the  throne  are 
not  of  this  sort.  For,  in  a  monarchical  State,  every  authority 
derives  its  competence  from  the  monarch  and  renders  its 
judgment  in  his  name.  The  monarch,  on  the  contrary,  does 
not  derive  his  position  as  supreme  head  of  the  State  from  any 
judgment  or  award.  There  are  no  authorities  in  the  German 
States  competent  to  decide  questions  of  succession. 

Still  more  doubtful  may  be  the  application  of  Art.  76, 
Cl.  i,  to  the  matter  of  disputes  over  succession  to  the  throne. 
This  clause  presupposes  "controversies  between  different 
States  of  the  Union."  It  is  therefore  not  applicable  at  all, 
where  the  contest  is  between  members  of  the  ruling  house,  no 
one  of  which  is  at  the  time  ruler  of  another  State  of  the  Union, 
for  the  dispute  is  not  between  "different  States."  The  same 
is  true  even  when  the  ruler  in  one  of  the  German  States  lays 
claim  to  succession  to  the  throne  of  another  German  State. 
The  "State"  can  have  no  right  of  succession.  That  belongs 
to  the  prince,  and  further,  only  in  his  capacity  as  prince ; 
not  as  the  representative  of  his  State,  but  only  by  reason  of 
his  descent,  or  by  reason  of  some  other  legal  title  founded  on 
his  person.1  If  it  is  assumed,  however,  that  the  terms  "State 
of  the  Union"  (Bundesstaat)  and  "member  of  the  Union" 

1  As  Binding  puts  it,  the  State  is  not  the  subject,  but  the  throne  is  the 
object,  of  the  dispute. 


76  THE  GERMAN   EMPIRE 

(Bundesglieder)  are  identical  in  the  Constitution,  and  that 
by  "members  of  the  Union"  one  is  to  understand  the  princes 
in  the  Union,  then  one  must  certainly  come  to  the  conclusion 
that  Art.  76,  Cl.  i,  applies  to  all  the  controversies  between 
these  princes,  which  do  not  partake  of  the  nature  of  controver- 
sies at  private  law.1  Taking  this  interpretation  of  the  clause, 
the  Bundesrat  declared  its  competence  in  the  matter  of  the 
succession  in  Brunswick,  in  1885,  and  in  that  of  Lippe,  in 
i898.2 

Further,  it  is  beyond  question  that  the  Bundesrat  has  the 
right  to  pass  upon  the  credentials  of  its  own  members.  This 
proof  of  credentials  can  go  so  far  as  to  determine  whether 
they  have  issued  from  the  authority  empowered  to  issue  them, 
and  hence  may  involve  a  decision  as  to  the  right  of  succession.8 
This  decision,  however,  affects  only  a  single  right  belonging 
to  the  power  of  the  State,  —  the  right  to  vote  in  the  Bundes- 
rat. The  pretender  rejected  by  the  Bundesrat  may  still 
maintain  possession  of  the  throne,  and  in  case  none  of  the 
other  pretenders  should  also  send  plenipotentiaries  to  the 
Bundesrat,  that  body  would  not  be  in  a  position  to  decide 
the  controversy  over  the  succession  to  the  throne  in  the  form 
of  a  proving  of  the  credentials  of  its  members.4 

1  See  the  illogical  position  of  Seydel,  in  Comm.  p.  132,  and  in  the  Deutschen 
Juristenzeitung,  III.  p.  483. 

3  It  may  be  adduced  in  favor  of  this  view  that  Art.  76.  Cl.  i,  of  the  RVerf. 
is  to  be  traced  back  to  Art.  n,  Cl.  4,  of  the  Bundesaktoi  1815.  The  meaning 
of  this  is  fixed,  however,  by  the  Bundesbeschluss  of  16  June,  1817,  to  be  that 
the  Bundesversammlung  is  the  authority  before  which  each  and  every  contro- 
versy of  the  members  of  the  Bund  one  with  another  is  to  be  brought.  See 
Von  Meyer,  Corp.  Jur.  Conjoed.  II.  p.  64. 

3  See  Kekule  von  Stradonitz,  in  Archiv  /.  d.  off.  Recht,  XIV.  pp.  9  ffv  in 
answer  to  objections  raised  by  Seydel,  Comm.  p.  409. 

4  In  a  way  similar  to  that  in  which  the  Bundesrat  decides  upon  the  ad- 
missibility  of   an  accredited  plenipotentiary,  the  Emperor  may  also  prove 
and  decide  as  to  which  of  several  pretenders  the  rights  attaching  to  the 


THE  BUNDESRAT  77 


But  apart  from  the  applicability  or  inapplicability  of  Art. 
76  of  the  Imperial  Constitution,  the  competence  of  the  Bundes- 
rat  to  decide  controversies  over  succession  to  the  throne 
follows  from  the  federal  relation  itself.  Every  State  belong- 
ing to  the  Union  must  have  a  head,  who  fulfils  the  obliga- 
tions growing  out  of  membership  in  the  Empire  and  exercises 
the  corresponding  rights.  The  Empire  is  not  an  unconcerned 
spectator  in  a  controversy  over  succession,  but  is  immediately 
and  directly  interested.  No  one  can  be  ruler  in  a  German 
State  who  is  not  recognized  as  a  member  of  the  Bund.  This 
recognition  can  be  given  or  refused  only  by  the  totality  of  the 
States,  since  it  can  be  given  only  as  a  unit.  It  is  impossible 
that  there  should  be  one  legitimate  ruler  for  one  group  of 
States  and  another  legitimate  ruler  for  another  group  of 
States.  There  must  be  one  ruler  who  shall  be  regarded  as 
legitimate  by  all  the  States.  The  organ  through  which  the 
totality  of  the  German  States  can  make  a  united  and  self- 
binding  decision  is  the  Bundesrat.  The  competence  of  the 
Empire  follows,  further,  from  the  fact  that  every  form  of  physi- 
cal self-help,  especially  war,  is  excluded  so  far  as  the  relations 
between  the  States  are  concerned,  and  that  the  Bund  was 
erected  for  the  very  purpose  of  "  protecting  the  federal  terri- 
tory and  the  rights  in  force  within  it."  Pretenders  to  a 
throne,  therefore,  can  find  this  protection  and  the  realization 
of  their  rights  only  at  the  hands  of  the  Empire,  and  this 
predicates  the  proof  and  determination  as  to  which  one  of 
the  pretenders  is  entitled  to  the  throne  in  case  of  a  contest. 
But  all  functions  of  the  Empire  for  which  the  Constitution 


headship  of  a  contingent  and  the  military  honors  under  the  Constitution  and 
the  Conventions  are  due  and  are  to  be  given  by  the  commanders  of  the  troops. 
The  practical  significance  of  such  a  decision  of  the  Emperor  is  not  to  be  over- 
looked, but  it  concerns  only  a  part  of  the  rights  involved  in  the  position  of 
ruler. 


78  THE  GERMAN   EMPIRE 

has  declared  no  other  organ  of  the  Empire  competent,  or 
for  which  the  imperial  law  has  provided  no  competent  organ, 
are  to  be  performed  by  the  Bundesrat. 

Since  this  competence  of  the  Bundesrat  is  not  based  upon 
Art.  76  of  the  Imperial  Constitution,  but  is  independent  of 
the  provisions  of  the  Constitution,  it  is  also  not  affected  by  the 
hypotheses  laid  down  in  that  article.  It  cannot  therefore 
be  taken  away  from  the  Bundesrat  by  a  State  law,  which 
refers  the  dispute  to  an  authority,  the  Imperial  Supreme 
Court,  for  example,  for  decision,  for  State  law  cannot  arbi- 
trarily diminish  or  change  the  rights  of  the  Empire.  Nor  is 
the  competence  of  the  Bundesrat  made  contingent  upon  the 
appeal  of  one  of  the  parties.  The  Bundesrat  may  take  the 
initiative,  since  not  only  the  interests  of  the  pretender  but 
the  interests  of  the  Empire  itself  are  concerned.1 

1  See  the  references  in  Laband,  I.  p.  253,  note  i. 


CHAPTER  V 
THE  REICHSTAG 

IN  every  constitutional  State,  a  body  representative  of  the 
people  of  that  State  finds  a  place  among  the  governmental 
organs.  In  this  respect  the  German  Empire  is  no  exception 
to  the  general  rule.  This  popular  representative  body  is  known 
in  Germany  as  the  Reichstag,  or  Imperial  Diet.  It  occupies 
a  position  in  the  Empire  similar  to  that  occupied  by  the  Land- 
tag, or  representative  body,  in  the  individual  State.  It  is  a 
necessary  organ  in  imperial  legislation.  Every  imperial  law 
requires  for  its  validity  the  consent  of  the  Reichstag,  and  to  it 
also  falls  the  discharge  of  the  annual  accounts. 

The  principle  underlying  the  constitution  and  organization 
of  the  Reichstag  is  radically  different  from  that  upon  which  the 
Bundesrat  is  constituted  and  organized.  While  in  the  Bundes- 
rat  State  lines  are  sharply  drawn  and  the  federal  element 
dominates,  in  the  Reichstag,  except  in  the  mere  matter  of 
administrative  technique  with  regard  to  the  election  of  its 
members,  State  lines  are  ignored  and  the  unitary  element  is 
emphasized.2  For,  in  the  Reichstag,  it  is  not  the  people  of 

1  See  the  study  by  Seydel,  in  Hirth's  Annalen,  1880,  pp.  352  ff ;  Laband,  I. 
pp.  269  ff. ;  Seydel,  Comm.  pp.  190  ff . ;  Meyer,  Staatsr.  pp.  399  ff . ;  Zorn,  Staatsr. 
I.  pp.  213  ff.,  and  in  Holz.  Rechtslex.  III.  pp.  409  ff. ;  Anschiitg,  in  Holz.- 
Kohler  Encydop.  II.  pp.  550  ff. 

2  The  fact  that  the  election  districts  are  constructed  with  direct  reference 
to  the  boundaries  of  the  States  would  seem  to  conflict  with  the  unitary  idea. 
But  this  arrangement  is  based  on  a  principle  of  administrative  convenience 
rather  than  on  a  principle  of  a  political  nature.     The  fact  that  suffrage  does 
not  follow  State  citizenship,  but  that  any  citizen  of  the  Empire  may  vote  in 
whatever  place  he  may  reside,  shows  that  the  mere  administrative  technique 
does  not  invalidate  the  unitary  character  of  the  Reichstag.     See  Anschiitz, 
op.  cit.  p.  552. 

79 


go  THE  GERMAN  EMPIRE 

the  individual  State  who  are  represented,  even  by  the  mem- 
bers elected  within  the  territory  of  that  State  and  from  the 
midst  of  its  population.  Each  delegate  represents  the  whole 
people  of  the  Empire.  It  was  the  avowed  purpose,  in  giving 
this  unitary  character  to  the  popular  representative  body,  to 
avoid  all  possibility  of  having  the  larger  interests  of  the  nation 
sacrificed  to  the  interests  of  the  individual  State,  or  made  a 
mere  incident  or  accident  hi  the  conflict  of  dynastic  and  par- 
ticularistic politics.1  This  is  the  end  sought  in  Art.  29 
of  the  Imperial  Constitution,  which  says,  "The  members 
of  the  Reichstag  are  representatives  of  the  whole  people 
and  are  not  bound  by  orders  or  instructions."  In  other 
words,  the  members  of  the  Reichstag  have  no  local  con- 
stituency to  whom  they  are  in  any  wise  responsible. 
The  Reichstag  is  not  an  organ  of  the  States.  It  is  an 
organ  of  the  Empire  as  such.2  It  is  because  the  Reichstag 
does  represent  the  people  as  a  whole,  and  not  a  fraction 
thereof,  that  the  principle  obtains  that  every  German  who 
possesses  citizenship  hi  the  Empire  is  entitled,  other  things 
being  equal,  to  vote  for  members  of  the  Reichstag  in  whatever 
State  he  may  have  his  residence  at  the  time  the  election  is 
held,  irrespective  of  whether  he  is  a  citizen  of  that  State  or  not. 
While,  in  the  Imperial  Constitution,  the  Reichstag  is  styled 
the  "representative"  of  the  people,  yet  it  does  not  represent 
the  people  as  a  corporate  body.  The  people  do  not  consti- 
tute a  juristic  person.  They  cannot  as  a  juristic  person  im- 
pose a  command  or  issue  an  instruction.  The  imperative 
mandate  finds  no  place  in  the  German  Constitution.  As 

1  See  Hahn,  Zwei  Jahre,  etc.,  p.  60. 

1  It  will  be  readily  seen  why  Alsace-Lorraine  cannot  be  represented  in  the 
Bundesrat,  and  why  it  must  be  entitled  to  elect  members  to  the  Reichstag. 
For,  while  Alsace-Lorraine  is  not  a  "member"  of  the  Empire,  is  not  a  State 
at  all,  and  for  that  reason  could  not  be  represented  in  the  Bundesral,  yet  its 
population  is  part  of  the  German  people. 


THE  REICHSTAG  8 1 


Laband  observes,  "The  Reichstag  is  a  representative  of  the 
people,  not  with  respect  to  its  rights  and  duties,  but  only  with 
respect  to  its  construction  and  composition."  It  is  a  represen- 
tative of  the  people  in  the  sense  that  every  individual  citizen 
of  the  Empire  who  enjoys  the  right  of  suffrage  may  take  part 
in  the  constitution  of  this  organ  of  the  Empire. 

The  Reichstag  consists  of  a  single  chamber.  Under  the 
provisions  of  Art.  20  of  the  Imperial  Constitution,  the 
members  of  the  Reichstag  are  chosen  by  direct  and  secret 
ballot,  at  a  general  election.  The  details  of  such  elections 
are  regulated  by  the  Election  Law  of  31  May,  1869.*  Every 
citizen  of  the  Empire,  of  male  sex,  who  has  completed  his 
twenty-fifth  year,  is  entitled  to  vote  for  members  of  the 
Reichstag  in  that  State  in  which  he  has  his  domicile  and  in 
that  precinct  of  the  Commune  in  which  his  domicile  is  located. 
He  may  vote  only  in  one  precinct.2  Certain  persons  are 
excluded  from  voting,  though  possessing  the  general  quali- 
fications above  mentioned.  The  law  designates  four 
classes  which  are  thus  cut  off  from  the  exercise  of  the  fran- 
chise:3 (i)  Persons  who  are  under  guardianship  or  for 
whom  a  trustee  has  been  appointed;  (2)  persons  against 
whose  property  proceedings  in  bankruptcy  or  insolvency 
have  been  commenced  in  the  courts,  during  the  continuance 
of  such  proceedings;  (3)  persons  who  are  receiving  support 

1  RGBl.  p.  145      This  law  went  into  force  in  Baden,  South  Hesse,  Wiirt- 
temberg,  and  Bavaria  through  the  "November  Treaties"  at  the  same  time 
with  the  going  into  effect  of  the  Imperial  Constitution.     See  the  Bundes- 
verjassung,  Art.  So,  I.  p.  13 ;   Treaty  with  Wiirttemberg,  Arts,  i  and  2 ;  Treaty 
with  Bavaria,  III.  §  8.     The  law  went  into  effect   in  Alsace-Lorraine  on 
i  January,  1874,  —  through  law  of  25  June,  1873,  §  6  (RGBl.  p.  161,  GBl.  /. 
El.-Loth.,  p.  131),  and  in  Heligoland,  on  i  April,  1891,  through  law  of  15  De- 
cember, 1890,   §  4,  together  with  §  2  (RGBl.  p.  207). 

2  Election  Law,  §  i  and  §  7.     If  he  has  several  domiciles,  he  must  choose 
one  and  vote  there  only.     Seydel,  op.  cit.  p.  363. 

*  Election  Law,  §  3. 
G 


82  THE  GERMAN   EMPIRE 

from  public  charities,  or  who  have  received  such  support 
during  the  year  immediately  preceding  the  election ;  (4)  per- 
sons from  whom  the  full  enjoyment  of  their  rights  as 
citizens  has  been  withdrawn,  as  the  result  of  a  judicial  de- 
cision, during  the  period  of  such  withdrawal,  in  so  far  as 
they  have  not  been  restored  to  the  exercise  of  these  rights.1 
If  the  withdrawal  of  the  full  enjoyment  of  the  rights  of  citi- 
zenship is  due  to  political  misdemeanor  or  crime,  the  right 
to  vote  revives  as  soon  as  the  penalty,  imposed  in  addition 
to  the  loss  of  civic  honors,  has  been  paid,  or  remitted  through 
pardon.  Military  persons,  whether  in  the  army  or  in  the 
navy,  may  not  vote  so  long  as  they  are  in  active  service  (bei 
der  Fahne).2  This  provision  covers  officers,  army  surgeons, 
and  the  men,  but  does  not  apply  to  the  military  officials  and 
civil  officials  of  the  military  administration.  The  decisive 
fact  is  the  condition  of  active  service.  A  furlough  or  leave  of 
absence  enjoyed  at  the  time  when  the  election  is  held  does  not 
release  the  person  on  leave  or  furlough  from  the  operation  of 
this  prohibitory  provision  of  the  law,  since  such  furlough  or 
leave  in  no  wise  terminates  the  relation  of  the  individual  to 
the  active  service  of  the  army  or  navy.3  In  the  case  of  mili- 
tary persons  in  active  service,  the  right  to  vote  is  not  looked 
upon  as  lost,  but  the  exercise  of  it  is  suspended  during  the 
period.  As  the  German  phrase  goes,  it  "rests."  In  like 
manner  the  exercise  of  the  right  of  suffrage  is  denied  to 
persons  who,  while  citizens  of  the  Empire,  have  no  domicile 
in  the  territory  of  the  Empire,  and  to  persons  who,  though 
entitled  otherwise  to  vote,  are  not  registered  in  the  list  of 

1  See  Strajgesetzbuch,  §§  32-37,  also  §  45. 

*  Election  Law,  §  2.    The  Military  Law  of  2  May,  1874  (RGBl.  p.  45), 
5  49.  Cl.  i,  denies  the  right  also  to  vote  for  State  representatives,  i.e.  for 
members  of  the  Landtag. 

*  Seydel,  in  Hirth's  Annalen,  1880,  p.  360. 


THE  REICHSTAG  83 


qualified  voters.  That  the  omission  of  the  name  is  due  to  an 
error  makes  no  difference.1  The  list  of  voters  in  every  precinct 
is  carefully  made  up,  and  is  exposed  for  a  sufficient  length  of 
time  to  public  inspection  to  enable  every  person  who  is  inter- 
ested to  see  that  his  name  is  included.  Should  the  voter  fail 
to  scrutinize  the  list  and  should  his  name  be  erroneously 
omitted,  he  must  suffer  the  consequences  of  his  own  neglect 
by  being  barred  from  the  exercise  of  the  franchise  for  that 
election.  The  right  is  not  lost,  it  "rests." 

Every  German,  of  male  sex,  in  the  whole  territory  of  the 
Empire,  who  has  completed  the  twenty-fifth  year  of  his  life 
and  who  has  been  a  member  of  a  State  of  the  Empire  for  at 
least  a  year,  is  eligible  to  membership  in  the  Reichstag, 
provided  he  is  not  excluded  from  the  right  to  vote  by  §  3 
of  the  Election  Law.2  In  order  to  eligibility,  it  is  not  neces- 
sary that  the  person  be  a  citizen  of  the  same  State  for  a  year, 
nor  is  it  required  that  he  be  a  citizen  of  the  State  from  which 
he  is  elected.  He  must  have  been  a  citizen  of  the  Empire 
for  at  least  a  year,  and  must  be  a  resident  of  the  State  from 
which  he  is  elected.  The  main  requirements  for  eligibility, 
therefore,  are  citizenship  for  a  year  in  the  Empire  and  the 
possession  of  the  qualifications  of  a  voter  under  the  Election 
Law.  Eligibility,  then,  is  not  denied  to  those  persons  who, 
by  reason  of  belonging  to  the  active  army  or  navy,  or  because 
of  the  omission  of  their  names  from  the  list  of  qualified  voters, 
are  temporarily  suspended  from  the  exercise  of  the  right  of 
suffrage.3  Article  9  of  the  Imperial  Constitution  closes  with 
the  declaration  that  "no  one  can  be  a  member  of  the  Bundesrat 
and  of  the  Reichstag  at  the  same  time."  This  position  is 
fully  justified  by  the  fact  that  the  member  of  the  Bundesrat 
does  not  vote  according  to  his  convictions,  but  according  to 

1  Election  Law,  §  8,  Cl.  2.  J  Ibid.  §  4. 

8  Meyer,  Staatsr.  p.  401 ;  Laband,  I.  p.  291 ;  Seydel,  op.  cit.  p.  366,  note  3. 


84  THE  GERMAN  EMPIRE 

his  instructions,  while  the  member  of  the  Reichstag  is  free; 
and,  further,  the  member  of  the  Bundesrat  acts  entirely  in 
the  capacity  of  a  deputy  or  proxy.  This  declaration  of  Art. 
9  does  not,  however,  render  the  members  of  the  Bundesrat 
ineligible.  The  German  writers  on  constitutional  law 
generally  agree  that  ballots  cast  for  a  member  of  the  Bundes- 
rat, or  even  for  the  Imperial  Chancellor,  are  not  to  be  rejected 
as  invalid,  nor  is  the  election  of  a  member  of  the  Bundesrat 
void.  A  member  of  the  Bundesrat  cannot  serve  as  a  member 
of  the  Reichstag.  In  the  event  of  his  election  he  must  choose 
whether  he  will  resign  as  member  of  the  Bundesrat  and  accept 
the  election,  or  whether  he  will  refuse  the  election  and  retain 
membership  in  the  Bundesrat.1 

Officials  require  no  special  leave  in  order  to  enter  the 
Reichstag.2  There  has  been  some  controversy  among  the 
writers  on  German  constitutional  law  as  to  the  meaning  of 
the  word  "official"  in  this  clause.3  The  question  is  as  to 
whether  it  should  be  made  to  include  persons  in  the  service  of 
the  Commune  and  of  the  church,  persons  occupying  a  no- 
tarial position,  and  all  "persons  invested  with  a  public  office," 
or  whether  it  should  cover  only  those  who  are  in  the  service 
of  the  Empire  or  of  a  State.  The  point  is  still  a  mooted  one. 
Whatever  may  be  ultimately  decided  with  reference  to  it, 
all  are  agreed,  at  any  rate,  that  all  officials  of  the  Empire  and 
of  the  States  are  included.  The  gist  of  the  article  is  this: 
When  a  man  has  been  chosen  by  the  vote  of  his  fellow-citizens 
to  membership  in  the  Reichstag,  he  may  not  be  hindered,  in 
the  exercise  of  the  functions  thus  assigned  him,  by  any  supe- 

1  Laband  I.  p.  291;  Meyer,  op.  tit.  p.  402;  Seydel,  op.  cit.  p.  366,  note 
4;  Zorn,  Staatsr.  I.  p.  220;  Amdt,  Staatsr.  p.  120,  Komm.  pp.  129,  154,  note  4. 

'  RVerj.  Art.  21. 

1  See  Laband,  I.  p.  312,  note  i ;  Meyer,  p.  204;  Zorn,  I.  p.  232;  Arndt, 
Staatsr.  p.  138,  Komm.  p.  159;  Seydel,  op.  cit.  p.  404,  also  Comm.  pp.  196, 
197. 


THE  REICHSTAG  85 


rior  to  whom  he  may  be  subordinated  in  his  capacity  as  a 
public  servant.  "The  declaration  contains  no  other  doctrine 
than  this,  that  the  official  who  leaves  the  service  in  order  to  ful- 
fil the  choice  which  has  fallen  upon  him,  commits  no  unauthor- 
ized or  blameworthy  breach  of  duty  as  a  public  servant,  and 
requires  no  permit  from  a  superior  authority  as  the  condition 
of  his  entry  into  the  Reichstag."  * 

In  determining  the  number  of  members  in  the  Reichstag, 
the  principle  obtains  that  each  State  shall  elect  as  many  repre- 
sentatives as  it  contains  multiples  of  100,000  in  its  population. 
Should  the  population  of  a  State  fall  below  this  100,000,  the 
State  may  elect  one  member  notwithstanding.  Further, 
should  the  surplus  in  any  State,  after  dividing  its  population 
by  100,000,  exceed  50,000,  that  State  may  elect  an  addi- 
tional member.2 

By  the  Election  Law  of  31  May,  1869,  §  5,  Cl.  2, 
the  number  of  delegates  to  be  elected  by  each  State  belonging 
to  the  former  North  German  Confederation  was  definitely 
fixed  until  such  time  as  it  might  be  changed  by  subsequent 
legislation.  That  is,  since  the  number  is  fixed  and  incorpo- 
rated in  the  law  itself,  the  apportionment  of  members  does 
not  change  automatically,  but  only  through  specific  legisla- 
tion. The  total  number  fixed  by  the  Law  of  1869  for  the 
States  of  the  North  German  Confederation  was  297,  of  which 
Prussia,  including  the  solitary  vote  of  Lauenburg,  had  236.* 
Article  20,  Cl.  2,  of  the  Imperial  Constitution  fixed  the  num- 

1  Laband,  I.  p.  311. 

:  Election  Law,  §  5,  Cl.  i. 

J  The  apportionment  was  as  follows :  Prussia,  236;  Saxony,  23;  Hesse,  3; 
Mecklenburg-Schwerin,  6 ;  Saxe-Weimar,  3 ;  Meckenburg-Strelitz,  i ;  Old- 
enburg, 3 ;  Braunschweig,  3 ;  Saxe-Meiningen,  2  ;  Saxe-Altenburg,  i ;  Saxe- 
Coburg-Gotha,  2 ;  Anhalt,  2 ;  Schwarzburg-Rudolstadt,  i ;  Schwarzburg- 
Sondershausen,  i ;  Waldeck,  i ;  Reuss  a.  L.,  i ;  Reiiss  j.  L.,  i ;  Schaumburg- 
Lippe,  i ;  Lippe,  i ;  Liibeck,  i ;  Bremen,  i ;  Hamburg,  3. 


86  THE  GERMAN  EMPIRE 

her  of  delegates  to  be  elected  by  the  South  German  States  on 
their  entry  into  the  Empire.1  To  this  number  fifteen  dele- 
gates from  Alsace-Lorraine  were  added  by  the  Law  of  25 
June,  1873,  §  3-2  The  whole  number,  as  now  fixed  by 
law,  is  397.  For  certain  political  reasons,  the  German 
government  has  not  seen  fit  to  pass  a  new  law,  readjusting 
the  representation  according  to  the  changes  hi  population 
which  have  taken  place  since  the  Law  of  31  May,  1869. 
Berlin,  with  a  population  of  over  2,000,000,  still  sends  a  half- 
dozen  delegates  to  the  Reichstag?  For  the  purposes  of  elec- 
tion each  State  is  divided  into  what  are  known  as  Election 
Circles  (Wahlkreise),  each  delegate  being  elected  in  a  special 
Circle.4  A  majority  of  the  votes  cast  is  required  for  an 
election.  Should  no  candidate  receive  an  absolute  major- 
ity, a  new  election  is  held,  in  which  the  choice  is  confined  to 
one  of  the  two  candidates  receiving  the  highest  number  of 
votes  at  the  regular  election.  In  case  of  a  tie,  the  lot  decides.5 
All  the  elections  for  members  of  the  Reichstag  are  held  on  one 
and  the  same  day  throughout  the  Empire.  This  day  is  fixed 
by  the  Emperor.6  Upon  receiving  notification  of  his  election, 

1  The  apportionment  in  the  South  German  States  was  as  follows :  Bavaria, 
48;  Wiirttemberg,  17;  Baden,  14;  Hesse,  south  of  the  Main,  6. 

3  Law  on  the  Introduction  of  the  Imperial  Constitution  into  Alsace-Lor- 
raine (RGBl.  p.  161,  GBl.  jiir  El.-Loth.,  p.  131). 

s  A  new  apportionment  would  increase  the  representation  from  the 
large  cities,  where  social  democracy  is  most  numerously  in  evidence. 

*  Election  Law,  §  6,  Cl.  i.  That  is,  the  voters  of  each  Circle  vote  fora 
single  candidate,  not  for  a  list  of  candidates.  Each  ballot  contains  but  one 
name,  —  the  uninominal  system.  The  boundaries  of  the  election  Circles 
are  fixed  by  imperial  law.  A  list  of  the  Circles,  made  up  in  conformity  to  the 
Election  Law,  §  6,  may  be  found  in  App.  C  to  the  Wahlreglement  of  28 
May,  1870  (BGBl.  p.  289).  See  also  supplementary  list  for  South  German 
States  in  RGBl.  1871,  p.  35. 

'Election  Law,  §  12.  This  second  election  is  called  a  "Stichwahl." 
For  general  procedure  of  election,  see  Laband,  I.  pp.  296  ff. 

'  Election  Law,  §  14. 


THE  REICHSTAG  87 


the  successful  candidate  must  signify  his  acceptance  or  refusal 
of  the  office,  and  must  furnish  proof,  if  he  accepts,  that  he  is 
eligible  under  the  law.1  A  declaration  of  acceptance  must  be 
filed  within  eight  days  after  the  notification.  A  failure  to 
accept  within  that  tune,  or  an  acceptance  under  protest  or 
with  a  reservation,  is  to  be  held  as  a  refusal,  and  a  new  elec- 
tion is  to  be  ordered.2 

Members  of  the  Reichstag  are  elected  for  a  period  of  five 
years,  dating  from  the  day  of  the  general  election.3  Member- 
ship in  the  Reichstag  is  terminated,  aside,  of  course,  from  the 
death  of  the  member,  in  four  ways:  (i)  by  the  expiration  of 
the  term,  (2)  by  the  dissolution  of  the  Reichstag  during  the 
term,  (3)  by  voluntary  resignation,  and  (4)  by  accepting  a 
salaried  office  in  the  service  of  the  Empire  or  of  one  of  the 
States,  or  by  assuming  an  imperial  or  State  office  with  which 
a  higher  rank  or  larger  salary  is  connected.4  In  the  latter 
case,  however,  he  may  regain  his  seat  through  a  new  election.5 

"The  Imperial  Constitution  knows  no  case  where  a  member 
of  the  Reichstag  can  be  deprived  of  his  seat  and  vote  as  a 

1  WaMreglement  of  28  May,  1870,  §  33. 

2  WaMreglement,  §§  33,  34. 

3  RVerf.  Art.  24.     Originally  3  years,  but  extended  by  law  of  19  March, 
1888  (RGBl.  p.  10).      German  jurists  are  not  a  unit  as  to  when  the  term  of  a 
member  of  the  Reichstag  begins.     The  prevailing  view  is  that  given  in  the 
text.      Meyer,  p.  404;   Laband  I.  p.  315,  note  i;    Seydel,  Comm.  p.  204. 
Arndt,  however,  inclines  to  the  view  that  the  term  begins  with  the  day  on 
which  the  Reichstag  first  assembles.     Komm.  p.  163,  Staatsr.  p.  133;  Herr- 
fiirth,  in  Deutschen  Juristenzeitung,  III.  (1898)  p.  2. 

4  RVerf.  Art.  21,  Cl.  2.     The  seat  in  the  Reichstag  is  not  lost,  however, 
by  accepting  an  unsalaried  imperial  or  State  office,  nor  is  it  forfeited  by  being 
invested  with  a  higher  rank  and  title  in  the  same  office.     Meyer,  Staatsr.  p. 
405.     Compare  RVerf.  Art.  21.     The  decision  of  the  question  whether  in  a 
given  case  the  conditions  which  would  deprive  a  man  of  his  seat  actually 
exist,  is  in  the  hands  of  the  Reichstag  alone.     Laband,  I.  p.  315;   Seydel, 
Annalen,  p.  398. 

1  RVerf,  Art.  21,  Cl.  2. 


88  THE  GERMAN   EMPIRE 

penalty  (Strafe}.  The  loss  of  membership  cannot  be  inflicted 
through  criminal  judgment,  nor  is  the  Reichstag  given  power 
to  exclude  a  member  because  of  continued  neglect  of  his 
duties  or  because  of  dishonorable  conduct.1  It  is  a  fair  ques- 
tion, however,  whether  a  member  who  has  lost  one  or  more 
of  those  qualifications  essential  to  eligibility,  does  not  thereby, 
ipso  facto,  lose  his  seat  and  voice  in  the  Reichstag.  The 
answer  to  this  question  may  be  in  doubt  for  the  reason  that 
the  conditions  requisite  for  becoming  a  member  of  the  Reichs- 
tag need  not  of  necessity  be  the  same  as  the  conditions  requis- 
ite for  remaining  a  member. 

"But  an  affirmative  reply  to  the  question  may  undoubtedly 
be  derived  from  the  very  nature  of  the  case,  for  instance, 
where  a  member  leaves  the  country  and  ceases  to  be  a  citizen 
of  the  Empire.  He  who  no  longer  belongs  to  the  German 
'people'  can  certainly  not  be  their  representative.  If  one 
admits  as  a  fact  that  the  loss  of  one  prerequisite  to  eligibility 
draws  after  it  the  loss  of  membership  in  the  Reichstag,  — 
e.g.  the  loss  of  citizenship  in  the  Empire,  —  logically  one 
must  also  assume  that  the  same  result  ensues  if  any  one  of  the 
four  requisites  to  the  right  of  suffrage  and  of  eligibility,  laid 
down  in  §  4  of  the  Election  Law,  fails.  This  is  expressly 
determined  by  law  in  the  case  of  a  member  who  has  been 
deprived  of  his  civil  rights  (burgerliche  Ehrenrechte).  Accord- 
ing to  §  33  °f  the  Criminal  Code  of  the  Empire,  the  loss 
of  civil  rights  involves  the  loss  of  those  rights  derived  from 
public  election.  So  must  it  also  be  assumed  that  a  man 
loses  his  seat  and  vote  in  the  Reichstag,  when  proceedings  in 
bankruptcy  are  commenced  against  his  property  or  when  he 

1  This,  of  course,  does  not  touch  the  right  of  the  President  of  the  Reichstag 
to  maintain  order  and  to  exclude  a  member  from  the  sitting  for  gross  breach 
of  good  order.  See  Geschaftsordnung  of  the  Reichstag  of  16  February, 
1895,  §  60  (Sten.  Ber.  1894-95,  P-  946). 


THE  REICHSTAG  89 


draws  support  as  a  pauper  out  of  the  common  or  public 
funds."1 

Any  such  case  would  be  decided  by  the  Reichstag  itself, 
since  it  involves  the  fundamental  right  to  determine  its  own 
membership,  a  right  which  lies  within  the  competence  of  the 
Reichstag  alone. 

The  Reichstag  cannot  assemble  on  its  own  initiative  nor  can 
it  take  up  its  work  on  its  own  motion.  The  Reichstag  is 
summoned  by  the  Emperor  in  the  name  of  the  allied  govern- 
ments. It  is  also  opened  by  the  Emperor,  either  in  person 
or  by  proxy.2  The  summoning  of  the  Reichstag  takes  place 
by  means  of  an  imperial  ordinance,  with  the  counter-signa- 
ture of  the  Imperial  Chancellor.  In  this  matter  of  summoning 
the  Reichstag  the  Emperor  is  not  left  wholly  to  his  own  dis- 
cretion. He  must  call  that  body  together  at  least  once  in 
every  calendar  year.3  He  may  summon  it  oftener.4  The 
Emperor  cannot  call  the  Reichstag  together  without  summon- 
ing the  Bundesrat.5  Since  the  Reichstag  cannot  meet  without 
the  call  of  the  Emperor,  any  assembling  of  that  body  in  the 
absence  of  such  a  call  would  be  illegal  and  its  acts  void. 
So  far  as  its  competence  is  concerned,  such  an  assembly  would 
have  no  more  power  than  any  other  assembly  of  citizens. 

Further,  the  Emperor  possesses  the  right  to  prorogue  and 
to  close  the  Reichstag.  No  such  right  is  inherent  in  the 
Reichstag  itself.  It  may  not,  therefore,  continue  its  session 
after  prorogation  by  the  Emperor,  and  any  business  transacted 
by  it  in  such  circumstances  would  be  void.  Here,  too,  the 
Emperor  is  not  left  entirely  to  his  own  free  will.  The  period 

1  Laband,  I.  p.  316.     Compare  also  Meyer,  Staatsr.  p.  405;  VonRonne, 
Staatsr.  II.  p.  250;  Seydel,  Annalen,  p.  397. 

2  RVerf.  Art.  12. 

5  Ibid.  Art.  13. 

4  Laband,  I.  p.  317,  note  i;  Seydel,  Annakn,  p.  406. 

6  RVerf.  Art.  13. 


9O  THE  GERMAN  EMPIRE 

for  which  the  Reichstag  is  prorogued  cannot  exceed  thirty 
days,  without  the  permission  of  the  Reichstag  itself,  and  pro- 
rogation cannot  be  repeated  in  the  same  session.1  An  in- 
definite prorogation,  therefore,  is  not  permissible.  The  effect 
of  prorogation  upon  the  business  of  the  Reichstag  is  that  of  a 
temporary  suspension,  not  that  of  a  complete  break.  In  other 
words,  the  prorogation  does  not  set  the  principle  of  "dis- 
continuity" hi  operation.  Business  left  unfinished  on  the 
day  of  prorogation  is  taken  up  at  the  point  where  it  was 
left,  on  the  resumption  of  the  sittings.  With  the  closing  of 
the  session,  however,  all  business  not  finished  on  that  date 
fails,  and  must  be  introduced  de  novo  if  it  is  to  be  acted  upon 
at  all.2 

The  Reichstag  may  be  dissolved.  It  cannot,  however, 
separate  on  its  own  motion.  This  dissolution  of  the  Reichs- 
tag requires,  according  to  Art.  24  of  the  Imperial  Constitu- 
tion, a  resolution  of  the  Bundesrat  with  the  consent  of  the 
Emperor.3  In  actual  practice,  however,  dissolution  takes 
place  through  ordinance  of  the  Emperor  with  the  consent 
of  the  Bundesrat.  With  its  dissolution,  the  Reichstag  ceases 
to  exist  and  its  members  revert  to  private  life.  A  dissolved 
Reichstag,  therefore,  cannot  be  again  summoned.4  In  case 
of  a  dissolution,  a  new  election  must  be  fixed  by  the  Emperor 
within  sixty  days  from  the  date  of  dissolution,  and  the  newly 
elected  Reichstag  must  be  summoned  to  meet  within  ninety 


1  RVerj.  Art.  26. 

1  Geschajtsord.  d.  Rtags.  §  70.  Compare  Law  of  23  December,  1874, 
i  February,  1876,  and  20  February,  1876,  continuing  the  Commission  on  the 
Code  of  Criminal  Procedure,  etc.,  between  the  sessions  of  the  Reichstag, 
by  special  legislation.  It  is  a  matter  of  dispute  whether  committees  may  sit 
during  the  period  of  prorogation.  For  two  different  views,  see  Laband,  I. 
p.  318;  and  Meyer,  Staatsr.  p.  406,  note  6. 

»  RVerj.  Art.  24. 

*  See  Laband,  I.  p.  319;  Meyer,  p.  405;  Seydel,  Comm.  p.  205. 


THE  REICHSTAG  91 


days  from  the  date  of  dissolution.1  In  other  words,  when  a 
Reichstag  is  dissolved,  a  newly  elected  Reichstag  must  be 
assembled  within  ninety  days.  This  new  Reichstag  is  not 
elected  to  fill  an  unexpired  term,  but  for  the  full  period  of 
five  years  from  the  date  of  the  new  election.  The  members 
of  the  old  Reichstag  are,  of  course,  eligible  to  reelection.  The 
Reichstag  may  be  dissolved  not  only  during  its  sessions,  in 
which  case  the  dissolution  carries  with  it  the  closing  of  the 
legislative  period,  but  also  between  its  sessions.  A  newly 
elected  Reichstag  cannot  be  dissolved,  however,  before  it  has 
assembled  for  the  first  time.2 

Article  27  of  the  Imperial  Constitution  provides  that  the 
Reichstag  shall  prove  the  credentials  of  its  members  and 
decide  upon  the  same.  It  shall  regulate  the  conduct  of  its 
own  business  and  its  discipline  by  means  of  Standing  Orders, 
and  shall  elect  its  own  President,  Vice- President,  and  Secretary. 
In  the  conduct  of  its  affairs,  therefore,  the  Reichstag  is  not 
subject  to  the  dictation  or  domination  of  any  other  organ  of 
the  government.  In  conformity  to  the  provisions  of  Art.  27 
the  Reichstag  has  adopted  a  Geschdjtsordnung,  or  system  of 
Standing  Orders.3  The  presiding  officer  of  the  Reichstag 
is  the  President,  who  is  elected  at  the  opening  session  of  the 

1  RVerf.  Art.  25. 

2  Seydel,  Comm.  p.  206. 

3  Geschdftsordnung  fur  den  Reichstag,  10  February,  1876.     The  Reichstag 
of  the  North  German  Confederation,  which  at  first  used  the  Standing  Orders 
of  the  Prussian  Abgeordnetenhaus,  adopted  Standing  Orders  of  its  own,  12 
June,  1868.     (See  Sten.  Ber.  p.  369.)     The  first  Reichstag  of  the  Empire 
declared,  21  March,  1871,  that  these  Standing  Orders  were  still  in  force, 
and  they  have  been  tacitly  regarded  as  binding  by  every  successive  Reichstag. 
Several  new  paragraphs  which  had  been  inserted  occasioned  a  revision  of 
the  Standing  Orders  in  1876,  the  date  given  above.     In  fact  this  revision 
consisted  practically  of  a  renumbering  of  the  paragraphs  and  was  a  piece  of 
private  work  tacitly  accepted  by  the  Reichstag.     There  has  been  no  formal 
recognition  of  it  in  the  proceedings  of  the  Reichstag.     It  has  been  used  in  the 
revised  form  since  10  February,  1876. 


02  THE  GERMAN  EMPIRE 

legislative  period  for  a  temporary  term  of  four  weeks,  at  the 
end  of  which  time  the  election  for  the  remainder  of  the 
session  takes  place.  In  all  the  subsequent  sessions  the  elec- 
tion for  the  term  of  the  entire  session  takes  place  at  once.1 
The  same  is  true  of  the  Vice- President.  The  secretary  is 
elected  at  the  beginning  of  the  session  for  the  entire  session. 
An  appeal  from  the  decision  of  the  President  may  be  taken 
only  so  far  as  the  Standing  Orders  permit  it.  The  President 
is  also  the  representative  of  the  Reichstag  in  all  official  inter- 
course outside  the  body. 

The  Reichstag  is  divided  into  seven  divisions,  each  having 
the  same  number  of  members  so  far  as  an  equal  division  is 
possible.  Every  member  of  the  Reichstag  must  belong  to 
one  of  these  seven  divisions.  These  divisions  are  consti- 
tuted by  lot,  immediately  upon  the  assembly  of  the  Reichstag,2 
and  stand  until  the  Reichstag,  upon  a  motion  supported  by 
thirty  members,  resolves  to  proceed  to  a  new  partition.3  The 
function  of  the  divisions  is  to  pass  upon  the  credentials  of 
members  of  the  Reichstag  and  to  elect  members  of  the  several 
committees.4  With  the  exception  of  the  Committee  of  Elec- 
tions, the  Standing  Orders  do  not  provide  for  any  special 
standing  committees,  leaving  the  selection  of  them  as  occa- 
sion and  the  business  of  the  Reichstag  may  demand.  The 
Committee  on  Elections  is  constituted  in  each  session  of  the 
Reichstag  for  the  entire  session.  Theoretically,  the  com- 
mittees are  made  up  by  the  several  divisions,  each  division 
choosing  by  ballot  an  equal  number  of  members  for  each 
committee,  the  majority  rule  obtaining.  As  a  matter  of 
fact,  however,  these  committees  are  made  up  by  an  under- 
standing between  the  leaders  of  the  various  factions  in  the 
Reichstag.  The  function  of  the  committees  is  the  prepara- 

1  GeschSjtsord.  §  u,  Cl.  i.  « Ibid.  §  2,  Cl.  3. 

'  Ibid.  §  2,  CL  i.  * Ibid.  §  26,  CL  3. 


THE  REICHSTAG  93 


tion  of  various  matters  referred  to  them  and  the  bringing  of 
these  matters  before  the  Reichstag.  The  sittings  of  the  com- 
mittees are  not  open  to  the  public,  but  any  member  of  the 
Reichstag  may  be  present,  unless  the  Reichstag,  by  special 
resolution,  excludes  its  own  members.1 

The  first  clause  of  Art.  22  of  the  Imperial  Constitution 
reads,  "The  proceedings  of  the  Reichstag  shall  be  public." 
This  provision  of  the  Constitution  does  not,  of  course,  give  to 
any  particular  individual,  or  to  all  individuals,  a  right  of 
access  to  the  meetings  of  the  Reichstag,  nor  the  right  to  retain 
a  seat  once  secured,  should  the  President  command  removal 
in  the  interests  of  order.  The  conditions  of  the  Constitution 
are  met  if  some  of  the  public  are  admitted.2  Section  36  of 
the  Standing  Orders  is  in  direct  opposition  to  Art.  22  of  the 
Constitution.  It  reads:  "The  sittings  of  the  Reichstag  are 
open.  On  motion  of  its  President,  or  of  ten  members,  the 
Reichstag  shall  go  into  secret  session,  in  which  the  first  busi- 
ness to  be  decided  is  the  question  of  excluding  the  public." 
This  section  is  taken  bodily  from  Art.  79  of  the  Prussian 
Constitution.  Over  the  question  as  to  whether  §  36  of  the 
Standing  Orders  is  not  legally  without  force,  German  jurists 
disagree.  The  prevailing  opinion,  however,  seems  rightly 
to  be  that  §  36  and  Art.  22  flatly  contradict  each  other  and 
that  §  36  is  invalid.3 

The  real  publicity  is  not  found,  however,  in  the  admission 

1  Geschdjtsord.  §  27,  Cl.  5. 

2  As  a  matter  of  fact,  the  number  of  persons  from  the  general  public  ad- 
mitted to  the  meetings  of  the  Reichstag  is  limited  to  forty.     Each  individual 
seeking  admission  must  apply  to  the  proper  official,  giving  name,  occupation, 
and  address.       Cards  of  admission  are  then  issued  for  the  sitting  of  the 
following  day. 

8  See,  however,  the  report  of  the  sitting  of  17  March,  1900,  when,  during 
the  discussion  of  the  "  Heinze  Law,"  proposing  certain  changes  in  the 
criminal  code  as  to  matters  which  it  was  deemed  wiser  not  to  discuss  in  pub- 
lic, the  public  was  excluded  from  the  sitting.  To  exclude  the  public  from 


94  THE  GERMAN  EMPIRE 

of  the  people  to  the  meetings  of  the  Reichstag,  but  in  the  pub- 
lication of  true  reports  of  the  transactions,  as  provided  for 
in  Art.  22,  Cl.  2,  of  the  Imperial  Constitution.  Such  true 
reports  are  privileged,  whether  made  orally  in  public  assem- 
blies or  circulated  in  the  public  press.  "True  reports  of  the 
transactions  in  the  public  sittings  of  the  Reichstag  shall  be 
free  from  all  responsibility."  l 

"The  Reichstag  shall  take  action  by  absolute  majority. 
To  render  such  action  valid  the  presence  of  a  majority  of  the 
statutory  number  of  members  is  necessary." 2  In  other  words, 
199  members  must  be  present  in  order  to  constitute  a  quorum. 
Unless  the  question  is  raised,  a  quorum  is  always  assumed  to 
be  present.  The  presence  of  a  quorum  is  required  only  for 
the  passing  of  acts,  i.e.  for  the  conclusion  of  business,  not  for 
the  mere  discussion  of  it.  The  question  of  the  presence  of 
a  quorum  can  be  raised  by  any  member  prior  to  the  vote.  It 
cannot  be  raised  after  a  vote  has  been  had.3  The  Presi- 
dent has  no  deciding  voice.  In  case  of  a  tie  the  motion  is 
lost. 

In  order  that  the  members  of  the  Reichstag  may  be  free  and 
independent  in  the  exercise  of  their  functions,  certain  im- 
portant provisions  are  laid  down  for  their  protection,  in  the 

the  discussion  is  not  the  same,  however,  as  to  exclude  them  from  the  vote. 
For  a  brief  discussion  of  the  question,  see  Seydel,  Annalen,  pp.  416-418; 
Laband,  I.  pp.  321,  322. 

1  RVerj.  Art.  22,  Cl.  2;  RStGB.  §  12.  In  a  complaint  or  in  judicial 
proceedings  against  a  person,  based  on  reports  of  the  transactions  of  the 
Reichstag,  the  case  turns  on  the  question  whether  the  reports  are  wahrheits- 
getreu.  For  discussion  of  the  question  of  "privilege"  with  respect  to  such 
reports,  see  Seydel,  Comm.  pp.  199  ff.;  Laband,  I.  pp.  320,  321. 

1  RVerj.  Art.  28. 

1  Seydel,  Comm.  p.  210;  Laband,  I.  p.  323,  note  2.  Article  28  formerly 
contained  a  Cl.  2,  which  provided  that  in  matters  which  touched  certain  of 
the  States  only,  and  not  the  whole  Empire  in  common,  the  vote  of  the  mem- 
bers from  those  States  only  should  be  taken  whose  interests  were  affected. 
This  clause  was  repealed  by  the  Law  of  February,  1873  (RGBl.  p.  45). 


THE  REICHSTAG  95 


Constitution  and  in  the  laws.  These  provisions  must  not  be 
regarded  as  creating  or  recognizing  personal  rights  of  the 
members  of  the  Reichstag,  though  that  view  is  held  by  a  con- 
siderable number  of  German  writers  on  constitutional  law.1 
The  aim  of  legislation  of  this  sort  is  not  to  secure  legal  or 
other  benefits  to  the  individual  members  of  the  Reichstag 
personally,  but  to  guarantee  to  the  State  the  free  and  un- 
trammelled action  of  one  of  its  most  essential  organs.  To 
this  end  certain  impediments  are  placed  in  the  way  of  the 
operation  of  the  criminal  law  and  of  the  law  of  criminal  pro- 
cedure. These  impediments  do  not  annul  or  neutralize  the 
laws  in  these  particular  instances,  but  merely  delay  their 
operation  until  such  time  as  they  may  act  with  least  incon- 
venience to  the  State.  That  is  to  say,  the  State  places  a  tem- 
porary restraint  upon  the  activity  of  one  organ  —  the  judi- 
cial organ  —  in  order  to  secure  the  undisturbed  activity  of 
another  organ  —  the  legislative.  To  that  end  it  is  pro- 
vided (i)  that  "no  member  of  the  Reichstag  shall  at  any  time 
be  subjected  to  judicial  or  disciplinary  prosecution  on  ac- 
count of  his  vote  or  because  of  any  utterance  in  the  exercise 
of  his  functions,  or  otherwise  held  responsible  outside  the 
assembly."2  However  great  may  be  his  political  responsi- 

1  See  Von  Pozl,  Das  Bayrische  Verfassungsrecht,etc.,  p.  129;  Von  Ronnel, 
Staatsr.  I.  p.  270;  Meyer,  Staatsr.  p.  299;  Sontag,  Der  besondere  Schutz  der 
Mitglieder  des  deutschen  Reichstags,  pp.  20  ff.   On  the  other  hand,  see  Laband, 
I.  p.  329;   Seydel,  Annalen,  p.  352,  Comm.  p.  213.   Cf.  Jellinek,  System  des 
subj.  offentl.  Rechtes,  pp.  161  ff. 

2  RVerj.  Art.  30.     This  of  course  does  not  exempt  the  member  from 
proper  discipline  within  the  assembly  itself.     See  §  46  and  §  60  of  the 
Standing  Orders.     For  literature  on  the  subject  of  the  immunity  of  members 
of  the  Reichstag  from  criminal  prosecution,  see  Von  Ronne-Zorn,  Pr.  Staatsr. 
5  Aufl.,  1899, 1.  p.  369,  note  7,  p.  370,  note  i.   Also  Laband,  I.  p.  330,  note  3. 
For  debate  on  a  bill  proposing  to  give  the  Reichstag  power  to  impose  certain 
penalties  upon  its  members,  see  Sten.  Ber.  for  1879,  pp.  247  ff.     This  bill 
passed  the  Bundesrat,  but  was  killed  in  the  Reichstag,  7  March,  1879. 


96  THE  GERMAN  EMPIRE 

bility  to  his  constituents,  the  member  of  the  Reichstag  may  not 
be  magisterially  pursued  for  anything  said  or  done  in  that 
body,  in  the  performance  of  his  duties.1  (2)  "Without  the 
consent  of  the  Reichstag,  no  member  of  it  shall  be  tried  or 
arrested  during  the  session  for  any  penal  offence,  unless 
arrested  in  the  commission  of  the  act  or  in  the  course  of  the 
following  day." 

Here  also,  the  case  is  not  dismissed,  but  trial  is  postponed  in 
the  interests  of  the  State  rather  than  of  the  individual.  This 
immunity  covers  the  "session"  —  Sitzungsperiode  —  of  the 
Reichstag.  That  is,  it  includes  not  only  the  "sitting"  of  that 
body,  but  extends  from  the  opening  of  the  Reichstag  through 
any  and  all  recesses  to  the  moment  when  the  Reichstag  is 
formally  closed.2  The  consent  of  the  Reichstag  is  also 
required  for  the  arrest  of  one  of  its  members  for  debt.3 

"At  the  request  of  the  Reichstag  all  criminal  proceedings 
instituted  against  one  of  its  members,  as  well  as  every  deten- 
tion on  remand  and  arrest  in  civil  matter,  shall  be  suspended 
during  the  session." 4  Further  protection  is  secured  to 
members  of  the  Reichstag  by  Art.  74  of  the  Imperial  Consti- 
tution, which  provides  for  the  punishment  of  slander.  This 
article  is  supplemented  by  §  106  of  the  Criminal  Code, 
which  imposes  a  penalty  for  hindering  a  member  in  the  dis- 

1  See  also  StGB.  §  n,  and  the  Komm.  of  Olshausen  on  it. 

1  This  is  the  generally  accepted  view  of  the  German  constitutional  lawyers. 
A  divergent  opinion  is  held  by  some  of  the  specialists  in  criminal  law.  See 
Laband,  I.  p.  332,  note  I. 

»  RVerj.  Art.  31,  Cl.  2. 

4  Ibid.  Art.  31,  Cl.  3.  Article  31  does  not  exempt  a  member  from  an  arrest 
made  in  the  execution  of  a  sentence  already  imposed,  in  due  process  of  law. 
It  deals  with  the  primary  arrest  and  preliminary  trial  incident  upon  an 
offence  committed,  rather  than  with  the  aftermath  of  a  trial  already  judicially 
had  and  terminated.  Moreover,  proceedings  are  interrupted  only  on  re- 
quest of  the  Reichstag,  and  unless  such  request  be  made  the  law  takes  its 
regular  course. 


THE  REICHSTAG  97 


charge  of  his  duties,  by  abduction  or  by  threats  of  bodily  or 
other  violence. 

Members  of  the  Reichstag  may  refuse  jury  service  and  ser- 
vice as  Schofjen.1  Members  of  the  Reichstag  cannot,  without 
the  consent  of  the  Reichstag,  be  summoned  as  experts  or  as 
witnesses,  during  the  session,  and  brought  to  a  place  other  than 
that  in  which  the  sittings  of  the  Reichstag  are  held.2 

"The  members  of  the  Reichstag,  as  such,  may  not  draw  any 
salary  or  compensation."3  Inasmuch  as  no  legal  penalty 
is  provided  for  the  infraction  of  this  prohibition,  it  must  be 
regarded  as  a  lex  imperjecta.  Considerable  discussion  has 
arisen  among  the  constitutional  lawyers  of  Germany  as  to 
the  exact  scope  of  this  prohibition ;  as  to  whether  it  is  directed 
only  to  preventing  the  payment  of  public  moneys  to  members 
of  the  Reichstag  in  the  form  of  salary  or  compensation,  or 
whether  it  covers  also  cases  of  private  provision.  The  pre- 
vailing view  is  that  it  prohibits  the  payment  of  salaries  and 
compensation  both  out  of  public  and  private  funds.4  Never- 
theless, the  custom  has  arisen  of  granting  free  transportation 
over  State  and  private  railroads  to  members  of  the  Reichs- 
tag, during  the  sitting,  as  well  as  eight  days  before  its 
opening  and  eight  days  after  its  close.  A  lump  sum  is 
appropriated  out  of  the  imperial  funds  for  transportation 
over  private  railroads.5 

*GVG.  §35,  Cl.  i;§85,  Cl.  2. 

8  StPO.  §§  49,  72;  CPO.  §§  382,  402. 

3  RVerf.  Art.  32.     But  see  Law  of  23  December,  1874  (RGBl.  p.  194),  as 
well  as  Law  of  i  February,  1876  (RGBl.  p.  15),  and  Law  of  20  February,  1876 
(RGBl.  p.  23),  where  provision  was  made  for  the  recompense  of  members  of 
certain  commissions. 

4  See  Laband,  I.  p.  336;  Seydel,  Comm.  p.  216.  Repeated  effort  has  been 
made  by  the  Reichstag  to  amend  Art.  32,  but  it  has  been  steadily  opposed 
by  the  Bundesrat. 

1  Free  transportation  is  at  present  limited  to  the  journey  between  the 
residence  of  the  member  and  the  place  of  meeting. 
H 


98  THE  GERMAN  EMPIRE 

The  motive  underlying  Art.  32  of  the  Constitution  is  thus 
stated  by  Laband :  "  The  prohibition  in  Art.  32  has  been  set 
up,  as  comes  out  with  indisputable  certainty  hi  the  debate  in 
the  Reichstag  over  the  Constitution,  as  a  political  corrective 
to  universal  and  direct  suffrage,  and  was  advanced  by  the 
government  as  a  condition  to  its  acceptance  of  the  draft  of 
the  Constitution  which  the  Reichstag  has  passed.  The  pro- 
hibition of  salaries,  therefore,  rests  upon  public  interests  and 
is  an  imperative  principle  of  law  which  cannot  be  violated  or 
circumvented  by  transactions  under  private  law."  1  Never- 
theless this  prohibition  operates  immediately  only  with  respect 
to  the  payment  of  salaries  and  compensation  out  of  imperial 
or  State  moneys.  Private  contracts  and  testamentary  be- 
quests and  foundations  having  as  an  object  the  payment  of  a 
salary  or  the  remuneration  of  services  as  a  member  of  the 
Reichstag  are  void.  No  penalty  attaches  to  a  violation  of  the 
prohibition.  The  member  who  may  receive  a  remuneration 
contrary  to  the  provisions  of  Art.  32  does  not  thereby  for- 
feit his  seat,  nor  does  an  assurance  of  remuneration  made 
prior  to  election  render  the  election  void.2  In  the  matter  of 
receiving  gifts,  the  members  of  the  Reichstag,  not  being 
officials,  do  not  stand  upon  the  same  footing  with  judges 
and  other  officials.  The  prohibition  of  Art.  32  is  confined  to 
the  receipt- of  salary  or  compensation  as  a  member  of  the 
Reichstag.  The  mere  fact  of  being  a  member  of  the  Reichs- 
tag does  not  justify  a  prohibition  of  gifts.  At  any  rate  it  is  a 
known  fact  that  a  number  of  the  members  of  the  Reichstag 
are  "supported." 

The  chief  function  of  the  Reichstag  is  indicated  in  Art.  5  of 

the  Imperial  Constitution:    "The  legislative  power  of  the 

Empire  shall  be  exercised  by  the  Bundesrat  and  Reichstag. 

The  consent  of  a  majority  of  both  bodies  shall  be  necessary 

1  Laband,  I.  p.  335.  *  Seydel,  Comm.  p.  217. 


THE  REICHSTAG  99 


and  sufficient  for  the  passage  of  an  imperial  law."  The 
Reichstag  is  an  essential  factor  in  imperial  legislation.  No 
bill  becomes  a  law  without  its  consent.  The  will  of  the 
Empire  comes  to  expression  in  the  form  of  legislation  only 
through  its  cooperation.  Existing  laws  cannot  be  changed, 
new  laws  cannot  be  enacted,  the  Constitution  cannot  be 
amended,  against  the  will  of  the  body  which  represents  the 
German  people.  While,  as  a  matter  of  fact,  most  bills  arise 
in  the  Bundesrat,  yet  the  Constitution  guarantees  to  the 
Reichstag  as  well  the  right  of  initiative.1  Under  the  German 
system  it  is  not  necessary  that  "money  bills"  originate  hi  the 
Reichstag.  These  bills  cannot  become  law,  however,  without 
its  consent.  Further,  in  so  far  as  treaties  with  foreign 
powers  affect  matters  which,  according  to  Art.  4  of  the  Con- 
stitution, fall  within  the  competence  of  imperial  legislation, 
the  ratification  of  the  Reichstag  is  necessary  for  their  validity.2 
A  yearly  report  of  the  expenditures  of  the  Empire  is  to  be 
laid  before  the  Reichstag  for  its  discharge.3  A  species  of  con- 
trol over  imperial  administration  is  secured  to  the  Reichstag 
through  the  right  guaranteed  it  by  Art.  23  of  the  Constitution 
to  refer  petitions  addressed  to  it  to  the  Bundesrat  or  to  the 
Imperial  Chancellor.4  The  Constitution  does  not  give  to 
the  Reichstag  or  to  its  members  a  right  of  interpellation. 
The  government  is  under  no  obligation,  other  than  such  as 
might  arise  on  political  grounds,  to  answer  questions  put  to 
it  by  the  Reichstag  or  by  any  member  thereof.  The  mere 
fact  that  the  matter  of  interpellations  is  regulated  in  the 
Standing  Orders  5  does  not  elevate  the  interpellation  to  a 
"juristically  fixed  institute  of  public  law."  " 

1  RVerf.  Art.  23.  «  See  Laband,  I.  pp.  282,  283. 

2  Ibid.  Art.  n,  Cl.  3.  6  Geschaftsord.  §§  32,  33. 

3  Ibid.  Art.  72. 

8  Laband,  I.  p.  284.    See  also  Seydel,  Annakn,  p.  430,  Comm.  p.  203. 


CHAPTER  VI 
IMPERIAL   LEGISLATION1 

I.  Four  stages  may  be  distinguished  in  the  process  whereby 
a  law  comes  to  perfection  under  the  German  Constitution: 
(i)  the  determination  of  the  content  of  a  law;  (2)  the 
sanction;  (3)  the  engrossment,  and  (4)  the  publication. 
To  become  effectually  operative  a  law  requires  the  coopera- 
tion of  four  agencies  or  organs, — the  Bundesrat,  the  Reichs- 
tag, the  Kaiser,  and  the  Imperial  Chancellor.  The  functions 
and  relative  importance  of  these  organs  in  imperial  legislation 
will  appear  in  the  following  discussion. 

(i)  The  Determination  of  the  Content  of  a  Law. — In  fram- 
ing a  bill,  or  determining  the  content  of  a  law,  the  Imperial 
Constitution  makes  no  distinction  between  the  powers  of  the 
Bundesrat  and  those  of  the  Reichstag.  Article  5,  Cl.  i,  of  the 
Constitution  reads:  "The  legislative  power  of  the  Empire 
is  exercised  by  the  Bundesrat  and  Reichstag.  The  consent  of 
a  majority  of  both  bodies  is  necessary  and  sufficient  for  an 
imperial  law."  2  While,  on  the  one  hand,  the  notion  that  the 
relation  between  the  Bundesrat  and  Reichstag  is  that  between 

1  In  discussing  the  subject  of  imperial  legislation,  no  time  shall  be  devoted 
to  the  dispute  over  the  distinction  between  "Gesetze  im  jormetten  Sinne" 
and  "Gesetze  im  materietten  Sinne,"  between  " Rechtsverordnungen"  and 
"  Verwaltungsverordnungen,"  —  a  dispute  which,  however  interesting  it 
may  be  to  a  German  jurist,  seems  to  an  American  or  English  jurist  very  use- 
less and  very  juiceless. 

1  It  is  not  necessary  at  this  point  to  discuss  the  meaning  of  the  word 
"  sufficient  "  (ausreichend).  If,  however,  as  Laband  maintains,  —  and  very 
properly,  —  that  a  distinction  must  be  made  between  the  content  of  the  law 
and  the  sanction  of  the  law,  his  point  that  the  Constitution,  in  using  the  word 
"  sufficient  "  in  this  clause,  refers  only  to  the  content  of  the  law  is  well  taken. 
As  elsewhere  observed,  the  clause  was  introduced  in  order  to  avoid  the 

ICO 


IMPERIAL  LEGISLATION  IOI 

an  upper  and  lower  House  must  be  constantly  guarded  against, 
on  the  other  hand,  the  view  must  be  as  carefully  repelled  that, 
in  determining  the  content  of  the  law,  the  activity  of  the 
Reichstag  goes  no  farther  than  the  exercise  of  a  veto  right 
upon  the  proposals  of  the  Bundesrat.1  Both  bodies  possess 
the  right  of  initiative.  In  Bundesrat  and  Reichstag  bills  may 
be  introduced  on  the  motion  of  a  member.  "Every  member 
of  the  Bund  is  empowered  to  propose  bills  and  to  speak  to 
them,  and  the  Praesidium  is  bound  to  bring  them  to  dis- 
cussion." In  these  words,  Art.  7,  Cl.  2,  of  the  Constitution 
guarantees  the  right  of  initiative  to  each  State  in  the  Union, 
through  its  accredited  representative  in  the  Bundesrat.  All 
measures  proposed  by  the  Reichstag  must  be  signed  by  at 
least  fifteen  members,  and  must  open  with  the  words,  uDer 
Reichstag  wolle  beschliessen."  2 

inconvenience  arising  under  the  old  system  requiring  unanimous  consent  to  a 
bill  in  order  to  raise  it  to  a  law.  But  in  making  his  distinction  between  the 
content  of  the  law  and  the  sanction  of  the  law,  and  in  taking  the  position  — 
which  is  the  only  tenable  one  —  that  it  is  the  sanction,  and  not  the  mere 
determination  of  the  content  of  a  bill,  which  makes  a  measure  law,  Laband 
must  logically  give  away  the  contention  over  law  in  a  formal  sense  and  law 
in  a  material  sense,  and  admit  that  it  is  the  form  and  not  the  content  which  de- 
termines whether  a  proposition  is  or  is  not  law.  Any  bill,  coming  before  the 
legislative  bodies  in  due  form  and  not  transcending  the  competence  of  those 
bodies  to  legislate,  is  law,  if  passed  by  the  requisite  majority  and  sanctioned 
by  the  power  authorized  to  impart  the  sanction.  It  makes  no  difference 
whether  the  content  of  the  measure  carries  with  it  a  "  Rechtsatz  "  or  not, 
whether  it  involves  a  principle  affecting  private  or  public  rights,  or  whether 
it  concerns  mere  administrative  matters;  it  is  a  law,  if  passed  in  the  form 
of  law  and  duly  sanctioned.  The  content  enters  into  the  question  merely 
in  determining  the  previous  question  of  competence. 

1  Fricker,  in  his  little  monograph,  Die  Verpflichtung  des  Kaisers  zur 
Verkundigung  der  Reichsgesetze,  p.  31,  holds  the  view  that  it  is  the  Bundesrat 
alone  which  determines  the  positive  content  of  a  law,  while  the  Reichstag 
merely  exercises  the  veto  right.  It  is  difficult  to  understand  how  Fricker 
can  maintain  his  thesis  in  view  of  the  right  of  the  Reichstag  to  initiate  and 
amend. 

1  Geschaftsord.  d.  Rtags,  Art.  22,  Cl.  i. 


IO2  THE  GERMAN  EMPIRE 

While  no  restriction  is  laid  by  the  Imperial  Constitution 
upon  the  Bundesrat's  right  of  initiative,  Art.  23  contains  a 
modifying  clause  which  seems  to  limit  the  exercise  of  that  right 
by  the  Reichstag.  This  article  reads:  "The  Reichstag  has 
the  right  to  propose  laws  within  the  competence  of  the  Empire." 
This  clause,  "within  the  competence  of  the  Empire,"  has  oc- 
casioned considerable  discussion  among  the  writers  on  Ger- 
man constitutional  law.  If  it  is  conceded  that  the  right  of  the 
Reichstag  to  originate  legislation  is  full  and  complete,  then 
this  clause  is  absolutely  meaningless.  According  to  Art.  78 
of  the  Constitution,  the  Constitution  may  be  amended  by 
ordinary  legislation.  In  other  words,  the  competence  of 
the  Empire  itself  can  be  widened  by  the  same  process  by  which 
any  other  law  comes  into  being,  that  is,  by  imperial  legisla- 
tion. The  Empire  is  competent  to  extend  its  own  competence 
by  law.  Since,  therefore,  such  an  extension  lies  "within 
the  competence  of  the  Empire,"  the  Reichstag  is  empowered, 
even  under  Art.  23  of  the  Constitution,  to  originate  a  bill 
having  such  an  end  in  view.  In  order  to  avoid  the  interpreta- 
tion of  the  clause  under  discussion  in  such  wise  as  to  make  it 
devoid  of  meaning,  it  is  suggested  that  while  Art.  78  establishes 
the  competence  of  the  Empire  to  amend  the  Constitution  in 
the  form  of  imperial  legislation,  yet  the  question  as  to  the  right 
of  initiative  on  the  part  of  the  individual  legislative  factors 
must  be  answered  by  declaring  the  right  an  unlimited  one 
so  far  as  the  Bundesrat  is  concerned,  but,  so  far  as  the  Reichs- 
tag is  concerned,  limited  by  Art.  23  to  those  matters  falling 
within  the  competence  of  the  Empire  at  the  time.1  Such  an 
interpretation,  if  strictly  adhered  to,  would  necessitate  a 
double  process,  should  the  Reichstag  desire  to  propose  a  law 
touching  matters  outside  the  present  competence  of  the 
Empire:  (a)  the  proposal  of  a  bill  to  extend  the  legislative 

1  See  Hand,  Studien,  I.  p.  256,  note  7. 


IMPERIAL  LEGISLATION  1 03 

competence  of  the  Empire ;  and,  after  this  became  law,  (6)  the 
proposal  of  a  bill  on  the  desired  subject.1  Laband  says 
in  this  connection  that  it  is  difficult  to  see  why  the  Reichstag 
should  not  join  its  original  bill  with  the  bill  to  extend  the 
competence  of  the  Empire,  making  the  former  contingent 
on  the  latter,  or  why  it  should  not  propose  an  extension  of 
the  competence  of  the  Empire  by  means  of  the  sanctioning  of 
the  proposed  law.2  However,  the  matter  which  the  consti- 
tutional lawyers  have  much  debated  has  been  settled  in  a  very 
decisive  manner  by  the  actual  practice  of  the  legislative  bodies. 
Further,  the  Bundesrat  has  the  power  always  to  check  legis- 
lation proposed  by  the  Reichstag,  whether  such  measures 
concern  matters  lying  within  the  legislative  competence  of 
the  Empire  or  without  it,  and  should  a  bill  proposed  by  the 
Reichstag,  touching  matters  without  the  competence  of  the 
Empire,  receive  the  assent  of  the  Bundesrat  in  due  constitu- 
tional form,  as  well  as  the  sanction  of  the  Bundesrat,  the 
validity  of  such  a  law  could  not  be  impeached,  since,  under 
the  Constitution,  the  consent  of  a  majority  of  the  Bundesrat 
and  Reichstag  —  an  increased  majority  in  the  Bundesrat 
where  a  law  involving  the  amendment  of  the  Constitution  is 
concerned  —  is  sufficient  to  warrant  its  sanction  and  hence 
its  force  as  law.  In  other  words,  the  law  could  not  be  attacked, 
in  such  circumstances,  on  the  ground  that  it  originated  in  the 
Reichstag.3 

The  Constitution  does  not  recognize  the  right  of  the  Em- 
peror, as  such,  to  initiate  bills  or  to  present  drafts  of  laws  in 
his  own  name.  Government  measures  are,  of  course,  best 


1  This  is  the  view  held  by  Seydel,  in  the  first  edition  of  his  Commentar, 
but  subsequently  abandoned.  See  Comnt.  ist  edition  (1873),  p.  151;  ad 
edition  (1897),  p.  202;  Von  Ronne,  Staatsr.  I.  pp.  266-267. 

J  Laband,  II.  p.  23. 

5  See  Meyer,  Staatsr.  p.  507,  note  n. 


104  THE  GERMAN  EMPIRE 

prepared  by  that  department  whose  interest  in  the  proposed 
legislation  and  whose  knowledge  of  the  requirements  are 
greatest.1  In  practice,  such  bills  are  actually  introduced  in 
the  name  of  the  Emperor,  but  they  are  treated  in  the  Bundes- 
rat  as  praesidial,  or  Prussian,  measures.2 

Article  16  of  the  Constitution  provides  that  bills  which  have 
passed  the  Bundesrat  are  to  be  laid  before  the  Reichstag  in 
the  name  of  the  Emperor,  in  the  form  in  which  these  measures 
have  been  adopted  by  the  Bundesrat,  and  that  these  bills 
shall  be  represented  on  the  floor  of  the  Reichstag  by  members 
of  the  Bundesrat,  or  by  commissioners  especially  appointed 
by  that  body.  Bills  thus  passed  by  the  Bundesrat  are  trans- 
mitted to  the  Reichstag  by  the  Imperial  Chancellor,  as  the 
sole  imperial  Minister,  who  acts  as  an  official  of  the  Emperor, 
and  not  as  the  presiding  officer  in  the  Bundesrat.  The  intro- 
duction into  the  Reichstag  of  bills  passed  by  the  Bundesrat  is 
an  independent  right  of  the  Emperor.  In  transmitting  such 
bills,  therefore,  the  Imperial  Chancellor  is  not  acting  under 
authority  conferred  upon  him  by  the  Bundesrat,  but  under 
authority,  special  or  general,  granted  him  by  the  Emperor. 
"It  is  the  Emperor  and  not  the  Bundesrat  to  whom  the  formal 
right  of  initiative  with  respect  to  the  Reichstag  belongs,  though 
this  right  is  certainly  restricted  under  the  Constitution  to  such 
an  extent  that  he  may  lay  before  the  Reichstag  only  such  meas- 
ures as  are  passed  by  the  Bundesrat"* 

1  So  far  as  constitutional  law  is  concerned  it  is,  of  course,  a  matter  of  no 
moment  by  whom  bills  are  prepared,  but  by  whom  introduced. 

J  See  Laband,  II.  p.  22,  note  2,  also  I.  pp.  217,  352,  note  i;  Hanel, 
Studien,  II.  p.  42 ;  Meyer,  p.  507. 

8  Hanel,  Studien,  II.  p.  45;  Laband,  II.  p.  24;  Meyer,  Staatsr.  p.  395; 
Meyer,  "  Antheil  der  Reichsorgane"  etc.  in  Festgabe  jur  Rudolf  von  Gneist, 
1889,  p.  72;  Von  Ronne,  Staatsr.  II.  p.  14;  Zorn,  Staatsr.  I.  p.  no;  Seydel, 
Comm.  p.  176;  Hensel,  in  Hirth's  Annalen,  1882,  p.  14;  Report  of  Sitting 
of  Reichstag,  24  February,  1881,  in  Sten.  Ber.  I.  pp.  30  ff. 


IMPERIAL  LEGISLATION  10$ 

Two  interesting  questions  arise  at  this  point :  (a)  May  the 
Emperor  examine  a  bill  passed  by  the  Bundesrat  to  determine 
whether  it  has  been  adopted  according  to  the  provisions  of 
the  Constitution?  In  other  words,  may  the  Emperor,  in 
transmitting  a  bill  from  the  Bundesrat  to  the  Reichstag,  pass 
upon  the  formal  constitutionality  of  the  measure,  and,  in  case 
the  bill  does  not,  to  his  mind,  respond  to  the  tests  of  con- 
stitutionality, may  he  refuse  to  lay  it  before  the  Reichstag? 
(b)  May  the  Emperor,  on  other  grounds,  on  grounds  of  ex- 
pediency or  of  public  policy,  or  for  any  other  similar  reason 
based  on  the  content  of  the  measure,  refuse  to  transmit  it  to 
the  Reichstag? 

It  is  generally  admitted  by  German  jurists  that  the  first 
question  is  to  be  answered  in  the  affirmative,  and  for  the  fol- 
lowing reason:  the  wording  of  Art.  16  of  the  Imperial 
Constitution  undoubtedly  gives  to  the  Emperor  the  right  to 
transmit  bills  to  the  Reichstag  from  the  Bundesrat,  as  his  own 
peculiar  prerogative.  In  the  exercise  of  this  right,  the  Em- 
peror does  not  act  as  an  organ  of  the  Bundesrat.  Bills  are 
not  transmitted  in  the  name  of  that  body,  nor  has  it  any 
responsibility  in  the  matter.  On  the  contrary,  bills  are  trans- 
mitted in  the  name  of  the  Emperor,  by  virtue  of  his  imperial 
office,  and  the  responsibility  attaches  to  him  —  so  far  as  one 
may  speak  of  responsibility  attaching  to  the  Emperor  at  all. 
In  order  to  set  in  motion  the  exercise  of  this  right  on  the  part 
of  the  Emperor,  it  is  not  enough  that  the  measure  shall  have 
passed  the  Bundesrat;  it  must  have  passed  the  Bundesrat  in 
the  manner  provided  for  by  the  Constitution.  Only  such 
bills  as  fulfil  the  constitutional  conditions  requisite  to  their 
validity  fall  within  the  competence  of  the  Emperor  to  trans- 
mit measures  to  the  Reichstag.  The  Emperor,  therefore, 
has  both  an  independent  right  and  an  independent  duty  to 
test  such  measures  in  order  to  determine  whether  they  are, 


106  THE  GERMAN  EMPIRE 

in  each  given  case  constitutionally  within  the  competence 
ascribed  to  him.1  It  is  conceivable  that  a  decided  differ- 
ence of  opinion  might  arise  between  the  Emperor  and 
the  Bundesrat  as  to  whether  a  bill  passed  by  the  latter 
body  fulfilled  the  constitutional  requirements.  In  such 
case,  there  is  no  higher  instance  to  which  the  Bundesrat 
can  appeal,  nor  is  the  Bundesrat  itself,  in  such  a  case,  a 
higher  instance  to  whose  decision  the  Emperor  must  submit 
as  final. 

The  second  question  must  be  answered  in  the  negative. 
The  Emperor  may  not,  on  grounds  of  policy  or  expediency, 
or  because  he  does  not  approve  of  the  content  of  the  bill, 
refuse  to  transmit  it  to  the  Reichstag.  This  negative  answer 
must  be  given  for  two  reasons :  In  the  first  place,  an  affirma- 
tive answer  would  do  violence  to  a  canon  of  interpretation. 
Every  law  is  fairly  assumed  to  be  consistent  with  itself  in  all 
its  parts.  Where  two  interpretations  are  possible,  one  involv- 
ing an  inconsistency  and  the  other  not,  the  interpretation 
which  preserves  the  consistency  of  the  law  is  to  be  preferred 
to  that  which  destroys  it.  Article  16  of  the  Imperial  Consti- 
tution consists  of  two  parts.  The  first  part  provides  for  the 
transmission  of  bills  passed  by  the  Bundesrat  to  the  Reichstag 
in  the  name  of  the  Emperor.  The  second  part  provides  that 
such  bills  are  to  be  represented  on  the  floor  of  the  Reichstag 
by  members  of  the  Bundesrat  or  by  commissioners  appointed 
by  it.2  It  is  the  evident  intent  and  purpose  of  this  second 
part  to  exclude  any  and  all  representation  of  the  Emperor 
through  his  officials  on  the  floor  of  the  Reichstag.  The 
members  of  the  Bundesrat  and  commissioners  named  by  it 
alone  —  not  the  Imperial  Chancellor  or  his  deputies  or  any 

1  Hanel,  Studien,  II.  p.  46;   Laband,  II.  p.  25,  note  i. 
1  See  also  RVerj.  Art.  9;  Geschdftsord.  d.  Rtags.  of  10  February,  1876, 
§  J  43,  48,  also  29,  found  in  Triepel,  pp.  188  ff. 


IMPERIAL  LEGISLATION  IO/ 

other  imperial  officials  —  are  to  follow  the  measure  to  the 
floor  of  the  popular  representative  body.  The  plain  inference 
to  be  drawn  is  this:  that  while  the  Emperor  is  given  the 
right  to  transmit  and  with  it  the  right  to  test  a  bill  sent  to 
him  by  the  Bundesrat  as  to  the  constitutionality  of  its  form, 
yet  the  Constitution  would  remove  the  decision  as  to  the 
material  content  of  the  measure  entirely  from  the  competence 
of  the  Emperor,  and  leave  it  wholly  in  the  hands  of  the  Bundes- 
rat. The  members  of  the  Bundesrat,  therefore,  or  their 
commissioners,  are  to  support  the  measure  before  the  Reichs- 
tag. The  determination  of  the  content  of  the  bill  should  lie 
outside  of  the  function  of  the  Emperor  and  of  the  imperial 
officials.  To  give  to  the  Emperor,  then,  the  right  to  refuse 
to  transmit  a  bill  to  the  Reichstag,  on  the  ground  that  he  dis- 
approved of  its  content,  from  reasons  of  policy,  expediency, 
or  for  any  similar  reason,  would  conflict  with  the  plain  intent 
of  the  article,  and  would  make  the  second  part  of  the  article 
irrelevant  and  inconsistent. 

In  the  second  place,  to  answer  the  question  in  the  affirmative 
would  do  violence  to  the  spirit  of  the  Constitution.  No  mate- 
rial distinction  is  made  by  the  Constitution  between  the  right 
of  initiative  of  the  Bundesrat  and  that  of  the  Reichstag.  To 
permit  the  Emperor  to  refuse  to  transmit  to  the  Reichstag 
bills  passed  by  the  Bundesrat,  clearly  within  its  competence 
and  according  to  constitutional  form,  on  the  ground  that  the 
content  of  the  bill  was  not  pleasing  to  the  Emperor,  would  at 
once  create  a  distinction  between  the  position  of  the  Bundesrat 
and  that  of  the  Reichstag  with  respect  to  the  initiation  of 
legislation,  since  no  such  barrier  as  this  imperial  right  stands 
in  the  way  of  bills  initiated  by  the  Reichstag.  Measures 
arising  in  that  body  and  passed  by  it  are  transmitted  by  the 
President  of  the  Reichstag  to  the  Bundesrat  through  the 
Imperial  Chancellor  —  not,  however,  as  Chancellor,  but  as 


108  THE  GERMAN  EMPIRE 

President  of  the  Bundesrat.1  No  opportunity  is  afforded  for 
the  intervention  of  the  Emperor.  No  chance  is  offered  for 
the  exercise  of  an  imperial  veto.  If  the  right  of  the  Emperor 
to  interfere  in  the  transmission  of  a  bill  arising  in  the  Bundes- 
rat be  conceded,  the  initiative  of  the  Bundesrat  is  virtually 
destroyed,  and  measures  arising  in  that  body  stand  on  a  differ- 
ent and  less  favorable  footing  than  those  originating  in  the 
Reichstag.  While  the  Reichstag  may  bring  bills  before  the 
Bundesrat  on  its  own  motion  and  at  its  own  discretion, 
measures  originating  in  the  Bundesrat  —  and  most  bills 
originate  there  —  can  reach  the  Reichstag  only  when  it  seems 
good  in  the  eyes  of  the  Emperor  to  permit  it.  Such  an  inter- 
pretation is  wholly  foreign  to  the  spirit  and  intent  of  the  Con- 
stitution and  invests  the  Emperor  with  a  power  and  function 
in  the  legislation  of  the  Empire  which  is  contrary  to  the  plain 
purpose  of  the  Constitution  and  to  the  clear  declaration  of 
Art.  5,  which  says  that  the  legislative  power  of  the  Empire 
shall  be  exercised  by  the  Bundesrat  and  Reichstag,  whose 
consent,  by  a  majority  vote  in  each  body,  is  necessary  and 
sufficient  in  determining  the  content  of  the  law. 

In  transmitting  a  bill  from  the  Bundesrat  to  the  Reichstag, 
the  responsibility  of  the  Imperial  Chancellor  goes  only  to  the 
constitutionality  of  the  proceedings  by  which  the  measure 
has  passed  the  Bundesrat,  in  other  words,  to  the  formal  con- 
stitutionality of  the  bill.  It  does  not  reach  the  question 
whether  the  bill,  as  passed,  conforms  to  a  proposition  made 
by  the  Emperor.  The  countersignature  of  the  Chancellor 
enables  the  Emperor  to  fulfil  a  duty  laid  upon  him  by  the 
Constitution,  and  for  this  only  is  the  Chancellor  responsible. 
That  responsibility  does  not  go  to  the  content  of  the  bill. 
The  Chancellor  may  not,  therefore,  pleading  his  responsibility 
in  extenuation  of  his  act,  refuse  to  transmit  a  bill  passed  in 
1  See  Rev.  Geschaftsord.  d.  Riags.  §  69,  8. 


IMPERIAL  LEGISLATION  109 

due  form  to  the  Reichstag.  Should  a  measure  reach  him  for 
transmission  whose  content  was  regarded  by  him  as  impolitic, 
or  unsound,  or  even  antagonistic  to  the  interests  of  the  country, 
this  fact  would  not  justify  him  in  declining  to  transmit  it, 
though  it  might  serve  as  a  sufficient  reason,  perhaps,  for  his 
resignation,  should  he  choose  to  tender  it.1 

1  Hanel,  Studien,  II.  p.  48,  says,  "  Undoubtedly  he  may  request  his 
dismissal  on  the  ground  that  his  duty  to  transmit  conflicts  with  his  political 
conceptions,  just  as  on  any  other  ground,  but  he  cannot  make  the  with- 
holding of  a  measure  from  the  Reichstag  a  condition  of  his  retaining  his 
office."  In  this  connection  Hanel  cites  an  interesting  case.  On  3  April, 
1880,  the  Bundesrat  decided  to  amend  the  draft  of  a  law  proposed  by  the 
Emperor,  in  such  a  way  that  the  receipts  from  money  orders  and  postal  ad- 
vances should  be  exempt  from  taxation.  Thereupon  the  Imperial  Chan- 
cellor, Bismarck,  requested  his  release  from  office,  assigning  as  his  motive 
that  "  he  could  not  stand  for  a  bill  passed  by  a  majority  against  the  vote  of 
Prussia,  Bavaria,  and  Saxony,  nor  was  he  able,  in  his  capacity  as  Chancellor, 
to  make  use  of  the  privilege  granted  to  the  minority  by  Art.  9  of 
Constitution."  This  article  gives  to  every  member  of  the  Bundesrat  the 
right  to  appear  and  be  heard  on  the  floor  of  the  Reichstag,  even  when  he  is  a 
member  of  the  minority  in  the  Bundesrat  and  speaks  against  the  measure  as 
passed.  The  Chancellor,  as  such,  is  not  a  member  of  the  minority  or  ma- 
jority. As  Chancellor  he  cannot  appear  on  the  floor  of  the  Reichstag  to  rep- 
resent the  views  of  any  State  government,  which  Art.  9  of  the  Constitution 
has  especially  in  mind.  On  the  8  April,  the  Emperor  replied  to  the  resig- 
nation of  the  Chancellor  by  issuing  the  following  Cabinet  Order:  — 

"  In  reply  to  your  request  of  the  6th  inst.  I  would  say  that  I  am  aware  of 
the  difficulties  into  which  you  may  be  brought  by  a  conflict  between  the  duties 
imposed  upon  you  by  the  Constitution  and  your  responsibility,  but  I  cannot 
bring  myself  to  release  you  from  your  office  on  the  ground  that  you  do  not 
believe  yourself  able  to  respond,  in  a  given  case,  to  the  tasks  laid  upon  you 
by  Arts.  16  and  17  of  the  Constitution.  Rather  do  I  leave  it  in  your  hands  to 
lay  before  me,  and  then  before  the  Bundesrat,  such  proposals  as  may  be 
adapted  to  bringing  about  a  constitutional  solution  of  such  a  conflict  of 
duties."  In  the  sitting  of  12  April,  the  Bundesrat  withdrew  its  earlier  act, 
and  the  affair  was  accordingly  settled. 

Another  case  arose  out  of  the  action  of  the  Bundesrat  of  26  February, 
1880,  with  reference  to  a  bill  proposed  by  Prussia  and  passed  by  the  Bundesrat. 
Because  of  certain  doubts  on  the  part  of  the  Chancellor,  he  did  not  transmit 
the  bill  to  the  Reichstag.  No  accurate  information  is  available  as  to  whether 


HO  THE  GERMAN  EMPIRE 

In  both  Bundesrat  and  Reichstag  the  majority  principle 
prevails.  So  far  as  the  Reichstag  is  concerned  this  principle 
operates  absolutely.  In  the  Bundesrat  it  suffers  certain 
modifications :  — 

(1)  Amendments  to  the  Constitution  are  lost  when  fourteen 
votes  in  the  Bundesrat  are  cast  in  the  negative.1 

(2)  In  legislation  with  respect  to  military  and  naval  matters, 
as  well  as  with  respect  to  matters  touching  the  customs  and 
the  consumption  taxes,  should  a  difference  of  opinion  arise 
in  the  Bundesrat,  the  vote  of  Prussia  —  as  Praesidium  — • 
is  decisive,  if  cast  in  favor  of  maintaining  the  existing  order.2 

(3)  In  dealing  with  a  matter  which,  according  to  the  pro- 
visions of  the   Constitution,   does  not  concern  the  whole 
Empire,  the  vote  of  those  States  alone  is  counted  which  are 
interested  in  the  matter.3 

(4)  Certain  provisions  of   the  law  regulating   the  tax  on 
brandy  can  be  amended,  after  the  law  has  gone  into  effect 
in   the  States  comprising  what  is  known  as  the  "brandy- 
tax  group,"  only  with  the  consent  of  those  States.4 

The  question  whether  one  of  the  four  cases  given  above 
actually  exists  is  to  be  decided  by  the  Bundesrat  by  a  simple 
majority.5 

the  Bundesrat  finally  withdrew  this  bill  or  whether  the  matter  simply  rested 
in  the  pocket  of  the  Chancellor.  At  any  rate  the  measure  was  not  transmitted 
to  the  Reichstag.  These  cases  were  thoroughly  discussed  in  the  sitting  of 
the  Reichstag  of  24  February,  1881.  See  Sten.  Ber.  Bd.  I.,  especially 
speech  of  Bismarck,  pp.  30  ff.  See  also  discussion  by  Hanel,  Studien,  II. 
pp.  49  ff. ;  Meyer,  Staatsr.  p.  395,  Antheil,  etc.,  pp.  72  ff. ;  Laband,;II.  p.  24, 
note  2;  Hensel,  Annalen,  1882,  pp.  14  ff. ;  Seydel,  Comm.  p.  176. 

1  RVerf.  Art.  78.  *  Ibid.  Art.  5,  Cl.  2.  «  Ibid.  Art.  7,  Cl.  4. 

4  Law  of  24  June,  1887  (RGBl.  p.  253),  §§  39,  47.  These  sections  have 
not  been  amended  by  the  new  revision  of  16  June,  1895  (RGBl.  p.  265). 
See  Proclamation  of  17  June,  1895  (RGBl.  p.  276). 

1  See  Hanel,  Studien,  I.  p.  258;  Meyer,  Staatsr.  p.  506,  note  10  and  cita- 
tion there  given;  Laband,  II.  p.  33,  note  3. 


IMPERIAL  LEGISLATION  III 

When  a  bill  passed  by  the  Bundesrat  is  transmitted  to  the 
Reichstag  for  its  action,  the  scope  of  such  action  is  not  con- 
fined to  a  mere  acceptance  or  rejection  of  the  bill  en  bloc. 
In  other  words,  the  function  of  the  Reichstag  in  imperial 
legislation  is  not  exhausted  by  the  exercise  of  its  right  of 
assent  or  veto.  All  bills  submitted  to  the  Reichstag  may  be 
amended,  as  well  as  accepted  or  rejected.1 

(2)  The  Sanction  of  a  Law. — Laband  calls  attention  to  the 
distinction  which  is  to  be  drawn  between  the  content  of  a 
measure  and  that  which  gives  to  the  measure  the  character 
and  force  of  law.  The  content  is  fixed  by  the  Bundesrat 
and  Reichstag.  But  when  the  content  of  a  bill  has  been 
determined  by  these  two  bodies,  the  bill  does  not  become 
vested,  ipso  facto,  with  the  force  of  law.  The  element  of 
command  must  be  imparted.  The  draft  agreed  upon  by  the 
two  legislative  bodies  is  raised  to  a  law  by  commanding,  or 
ordering,  obedience  to  its  provisions.  Such  a  command,  it 
need  scarcely  be  said,  can  be  valid  only  when  it  issues  from 
the  competent  authority. 

"Every  law,"  says  Laband,  "consists  of  two  parts,  wholly 
distinct  from  each  other,  the  one  containing  the  rules  them- 
selves, and  the  other  containing  the  legal  command,  the  order 
that  these  rules  be  obeyed."2  While  a  distinction  may  be 

1  Bills  arising  in  the  Reichstag  may  also  be  amended  by  the  Bundesrat. 
Bills  amended  by  either  body  must  be  again  submitted  to  the  other  for  its 
action.  This  action  may  again  take  the  form  of  further  amendment,  thus 
setting  in  motion  an  endless  chain  of  amendment  and  counter-amendment, 
until  an  agreement  is  reached  between  the  two.  No  provision  is  made  in  the 
Constitution,  or  in  the  Standing  Orders,  for  terminating  such  a  game  of 
legislative  battledore  and  shuttlecock.  In  practice  it  is  customary,  however, 
in  important  measures  originating  in  the  Bundesrat,  for  that  body  to  indicate 
to  the  Reichstag,  at  a  certain  stage  in  the  proceedings,  what  amendments  it 
will  agree  to  and  what  changes  it  will  reject.  By  such  an  expedient  legislative 
business  is  expedited. 

J  Laband,  II.  p.  26. 


112  THE  GERMAN  EMPIRE 

fairly  drawn  and  sharply  drawn  between  the  content  of  the 
law  and  the  command  of  the  law,  such  a  distinction  is  very 
apt  to  blur  the  significance  of  the  act  of  determining  the 
content  and  to  isolate  it  unwarrantably.  Laband's  analysis 
clearly  distinguishes  a  mere  formulation  or  coordination  of 
legal  propositions,  which  anybody  is  at  liberty  to  make,  and 
which  is  devoid  of  all  binding  force,  from  that  formulation 
of  legal  propositions  which  is  possessed  of  the  authority  to 
compel  obedience.  This  analysis  lays  its  finger  on  the  very 
characteristic  which  differentiates  such  legal  formulas  from 
laws,  viz.  the  possession  of  binding  force.  Moreover,  it 
follows  from  this  distinction  that  to  impart  the  element  of 
command  to  a  legal  rule,  or  series  of  rules,  is  equivalent  to 
issuing  a  law.  But  when  Laband  speaks  of  a  distinction 
between  the  content  of  a  law  and  the  command  of  a  law, 
which  separates  the  one  wholly  from  the  other,  he  is  in  danger 
of  creating  a  false  impression.  For,  as  Meyer  well  insists,1 
the  matter  must  not  be  so  conceived  that  the  element  of  com- 
mand shall  be  regarded  as  something  externally  added  to  the 
formulated  proposition  or  rules.  On  the  contrary,  these 
legal  propositions  constitute  the  subject-matter  of  the  com- 
mand. Through  the  command,  the  content  of  the  bill 
becomes  law.2  But  the  passing  of  a  bill  by  the  Bundesrat 
and  Reichstag  means  more  than  a  mere  favoring  of  its  content. 
It  is  an  expression  of  will,  an  agreement  that  a  draft  contain- 
ing these  definite  and  enumerated  propositions,  —  no  more, 
no  less,  —  shall  be  given  the  force  of  law,  shall  be  made 
binding,  shall  be  invested  with  the  command  which  com- 
pels obedience.  These  legislative  bodies,  therefore,  do  not 

1  Meyer,  Anlheil,  etc.,  p.  28. 

*  Laband  also  recognizes  this  patent  fact :  "  Selbstverstandlich  ergreift  der 
Befehl  '  ita  jus  esto'  auch  den  Inhalt."  II.  p.  5,  note  i.  See  also  Jellinek, 
Gesetz  und  Verordnung,  p.  318. 


IMPERIAL  LEGISLATION  1 13 

exhaust  their  legislative  functions  in  the  mere  determination 
of  the  content  of  a  measure,  but  they  share  also  in  the  com- 
munication of  the  element  of  command  to  the  projected  bill. 
It  may  be  freely  conceded  that  the  command  does  not  issue 
from  the  deliberative  bodies,  as  such,  but  their  consent  is  a 
necessary  condition  to  its  issuance.1 

The  determination  of  the  content  of  a  bill  and  the  impart- 
ing of  the  element  of  command,  while  sharply  distinguishable 
in  thought,  are  not  wholly  separate  from  each  other,  as  La- 
band  declares,  but  in  reality  are  inseparably  bound  together. 
The  fixing  of  the  content  of  a  law  has  a  vital  and  indissoluble 
relation  to  the  sanction  of  it. 

In  attempting  to  locate  the  organ  by  which  the  sanction  is 
imparted,  a  difficulty  is  encountered  in  the  very  nature  of  the 
Empire.  It  is  a  principle  of  constitutional  law  in  all  the  Ger- 
man monarchies  that  the  power  of  the  State  —  Staatsgewalt 
—  centres  in  the  ruler.  He  is,  therefore,  the  lawgiver.  He 
it  is  who  imparts  the  element  of  command  to  the  draft  of  a 
law.  The  sanction  is  his  by  virtue  of  his  own  right.  No 
doubt  can  arise  in  one  of  these  monarchies  as  to  the  organ  by 
which  the  sanction  is  given.  Not  so  in  the  Empire.  The 
Constitution  does  not  mention  the  word  "  sanction."  What- 
ever is  drawn  from  that  document,  therefore,  respecting  the 
sanction  of  the  laws  must  be  drawn  from  it  by  implication. 
On  the  other  hand,  the  usual  preamble  or  formula  by  which 
a  law  is  published  would  seem  to  indicate  that  the  Emperor 
is  clearly  the  organ  by  which  the  sanction  is  given.2  Such  an 
assumption  is  untenable  for  several  reasons.  The  Emperor 
is  not  monarch  in  the  Empire,  as  the  King  of  Prussia,  for 

1  Meyer,  Antheil,  etc.,  p.  33. 

2  The  formula  reads,  "We  ...  by  the  grace  of  God  German  Emperor 
and  King  of  Prussia,  etc.,  do  order  in  the  name  of  the  Empire,  the  consent  of 
th»  Bundesrat  and  Reichstag  having  been  obtained,  what  follows:" 

i 


114  THE  GERMAN   EMPIRE 

instance,  is  monarch  in  Prussia.  In  case  of  doubt  respecting 
his  powers,  the  presumption  is  not  in  favor  of  the  Emperor, 
as  is  always  the  case  in  a  monarchy.  The  Emperor  does 
not  rule  in  his  own  right,  but  by  virtue  of  the  Constitution, 
with  such  powers  only  as  are  explicitly  delegated  to  him. 
The  right  of  sanction  is  not  among  them. 

It  is  true  that  under  the  Constitution  the  publication  of  a 
law  is  laid  upon  the  Emperor.  It  is  given  him  as  a  delegated 
right.  It  is  not  a  monarchical  prerogative.  Moreover,  the 
publication  of  the  law  is  not  only  the  right  of  the  Emperor, 
it  is  his  duty,  a  duty  which  he  may  not  avoid.  He  must  pub- 
lish every  law  which  has  passed  the  Bundesrat  and  Reichstag 
in  due  form,  without  regard  to  his  own  personal  attitude 
toward  its  content.  It  may  be  a  law  contrary  to  the  will  of 
the  Emperor.  It  may  be  a  law  originating  with  the  Em- 
peror and  subsequently  amended  to  such  an  extent  as  to 
render  it  wholly  repugnant  to  him.  It  may  be  a  law  passed 
against  the  vote  of  Prussia.  In  any  case,  if  passed  in  due 
form,  the  Emperor  must  publish  it.  It  cannot  be  main- 
tained, therefore,  that  the  publication  of  the  law  by  the 
Emperor  carries  with  it  the  sanction  of  the  law,  uno  actu. 
The  publication  of  an  imperial  law  follows  the  sanction 
logically  and  chronologically.  It  follows  as  a  mechanical 
result.  The  Emperor  has  no  will  in  the  matter,  if  the  law  is 
passed  in  proper  form.  This  fact  alone  indicates  that  the 
publication  does  not  include  the  sanction.  It  presupposes  the 
sanction.  The  sanction  is  not  a  prescribed  act.  It  is  an 
act  of  free  will.  It  is  an  act  which  decides  whether  a  cer- 
tain bill  shall  become  law.  He  who  possesses  the  right  to 
sanction,  possesses  also  the  right  of  absolute  veto.  The 
Emperor  has  no  such  power  under  the  Constitution.  On  the 
contrary,  there  is  an  evident  intention  on  the  part  of  the 
Imperial  Constitution  to  exclude  the  Emperor  as  an  inde- 


IMPERIAL  LEGISLATION  115 

pendent  factor  in  imperial  legislation.  Clause  i  of  Art.  5 
reads,  "The  legislative  power  shall  be  exercised  by  the 
Bundesrat  and  Reichstag."  Here  no  mention  is  made  of 
the  Emperor.  "Were  it  intended,"  says  Laband,1  "that  the 
Emperor  should  be  granted  the  power  to  give  or  withhold  the 
sanction  to  an  imperial  law;  were  his  assent,  therefore, 
essential  to  the  bringing  of  a  law  into  being,  he  could  not 
have  been  passed  by  in  the  enumeration  of  those  organs  by 
which  the  legislative  power  is  exercised."  The  declaration 
of  the  first  part  of  Art.  5,  Cl.  i,  together  with  the  statement 
in  the  second  part  of  the  clause,  that  the  majority  vote  of 
both  legislative  bodies  shall  be  necessary  and  sufficient, 
would  seem  to  indicate  very  clearly  that  the  Constitution 
aimed  at  the  exclusion  of  the  Emperor  as  an  independent 
factor  in  the  legislation  of  the  Empire.2 

Whatever  view  may  be  held  as  to  the  general  proposition 
that  the  sanction  to  a  law  must  be  imparted  by  that  organ 
which  is  the  bearer  of  the  sovereign  power,  certain  it  is  that 
such  a  principle  characterizes  German  constitutional  law. 
The  sanction  of  a  law  is  imparted  by  the  monarch  in  his  capa- 
city as  bearer  of  the  sovereign  power  of  the  State.  Moreover, 
it  is  an  essential  characteristic  of  the  sanction  that  it  is  always 

1  Laband,  II.  p.  27. 

2  It  may  well  be  urged  that  the  word  "sufficient"  is  intended  merely  to 
defeat  the  principle  of  required  unanimity  in  the  vote  of  Bundesrat  and  Reichs- 
tag, which  would  embarrass  legislation;   that  the  word  is  taken  from  the 
"Prussian  Outline  of  10  June,  1866,"  and  in  view  of  the  historical  motive 
must  not  be  given  a  too  sharp  juristic  interpretation.     It  may  be  also  urged 
that  Cl.  i  does  not  fully  exhaust  the  process  of  legislation  and  something 
more  must  be  added  in  order  to  a  full  regulation  of  it.     But,  as  Laband  ob- 
serves, any  addition  that  contradicts  the  wording  of  the  clause  is  by  that 
very  fact  to  be  rejected.     Moreover,  "  a  comparison  of  Art.  5,  Cl.  i,  with  the 
prototype,  Art.  62  of  the  Pr.  Verf,  shows  beyond  doubt  that  the  omission  of 
the  Emperor's  assent  in  the  making  of  a  law  indicated  that  his  assent  should 
not  be  required  in  the  issuance  of  a  law."     Laband,  II.  p.  28. 


Il6  THE  GERMAN   EMPIRE 

ascribed  to  those  organs  in  a  State  which  have  a  material 
right  of  assent  to  the  laws.1  The  Emperor,  however,  is 
not  bearer  of  sovereignty  in  the  Empire,  nor  has  he  a  material 
right  of  assent  to  the  laws.  It  is  true  that  the  Emperor,  in 
conformity  to  Art.  17  of  the  Constitution,  is  intrusted  with 
the  engrossment  and  publication  of  the  imperial  laws  and 
the  supervision  of  their  execution.  But  these  functions  do 
not  constitute  the  sanction.  They  presuppose  it  as  already 
a  fait  accompli.2 

Through  what  organ  of  the  Empire,  then,  is  the  sanction 
imparted  to  a  bill  ?  In  accordance  with  the  general  principle 
of  German  constitutional  law,  through  that  organ  which 
represents  the  bearer  of  the  sovereign  power  in  the  Empire, 
—  through  the  Bundesrat.3  Whether  one  holds,  with  Meyer 
and  others,  that  the  sovereign  power  of  the  Empire  lies  in  the 
totality  of  the  German  governments,  or,  with  Laband,  that 
it  lies  in  the  totality  of  the  German  States,  there  is  no  disagree- 
ment over  the  proposition  that  the  organ  through  which  the 
members  of  the  Union  exercise  their  share  in  the  power  of 
the  Empire  is  the  Bundesrat,  not  the  Emperor.  It  is  through 
the  Bundesrat  that  the  sovereign  will  of  the  Empire  is  uttered 
in  the  making  of  laws. 

Article  7,  Cl.  i,  of  the  Imperial  Constitution  provides  that 
the  Bundesrat  shall  take  action  with  respect  to  measures  to 
be  laid  before  the  Reichstag  and  with  respect  to  resolutions 

1  Meyer,  Antheil,  etc.,  p.  36. 

2  Laband,  II.  p.  28,  calls  attention  to  Cl.  2  of  Art.  5,  which  provides  that 
bills  touching  military  and  naval  matters  and  certain  customs  and  tax  mat- 
ters referred  to  in  Art.  35  shall  be  considered  lost  if  the  vote  of  the  Prae- 
sidium  is  cast  against  them.     "  The  granting  of  such  a  right  would  be  wholly 
devoid  of  meaning  if  the  Praesidum  had  a  liberum  veto  upon  all  bills,  or,  to 
speak  more  correctly,  had  the  right  of  sanction  with  respect  to  bills  passed 
by  the  Bundesrat  and  Reichstag." 

J  See  literature  cited  in  Laband,  II.  p.  29,  note  i. 


IMPERIAL   LEGISLATION  I IJ 

passed  by  the  Reichstag.  It  is  the  practice,  therefore,  — 
a  practice  growing  out  of  this  clause,  —  that  the  final  action 
on  all  bills  shall  be  taken  by  the  Bundesrat.  Even  when  a 
bill  originates  in  the  Bundesrat  and  is  passed  by  the  Reichstag 
without  amendment,  it  is  brought  back  a  second  time  to  the 
Bundesrat  and  is  acted  upon  again  by  that  body  before  it  is 
sent  to  the  Emperor  for  engrossment  and  publication.  The 
Emperor  cannot  engross  and  publish  a  measure  which  has 
first  passed  the  Bundesrat  and  then  the  Reichstag.  All 
measures  must  go  back  to  the  Bundesrat.  In  each  and 
every  case,  the  final  determination  is  had  by  that  body,  and 
all  laws  reach  the  Emperor  for  engrossment  and  publication 
only  through  the  Bundesrat.  This  final  action  of  the  Bundes- 
rat with  respect  to  bills  passed  by  the  Reichstag  gives  the 
sanction  to  these  measures.1  However  improbable  from  a 
political  standpoint,  it  is  nevertheless  legally  possible  for 
the  Bundesrat  to  sanction  a  bill  originating  in  its  own  midst 
and  already  passed  by  it,  when  the  measure  is  returned  from 
the  Reichstag  accepted  without  amendment.  In  other  words, 
the  Bundesrat,  as  the  body  representing  the  sovereign  power 
of  the  Empire  in  imparting  the  sanction,  is  not  bound  by  its 
action  as  a  legislative  body  in  determining  the  content  of  the 
law.2 
(3)  The  Engrossment  (Ausjertigung)  of  a  Law.  —  To  the 

1  Meyer,  Antheil,  etc.,  p.  48.     Where  a  bill  originates  in  the  Reichstag, 
it  is  first  passed  by  that  body  and  then  transmitted  to  the  Bundesrat.     Should 
the  bill  pass  the  Bundesrat  without  amendment,  the  action  of  the  Bundesrat 
in  fixing  the  content  of  the  law  and  in  giving  to  the  law  its  sanction  takes 
place  at  one  and  the  same  time  and  uno  actu. 

2  For  a  brief  discussion  and  refutation  of  the  views  of  Flicker  and  Gierke 
with  respect  to  the  interpretation  of  Art.  7,  Cl.  i,  see  Meyer,  Antheil,  etc., 
pp.  48  ff. ;  Laband,  II.  p.  30,  note  2.   See  also  speech  of  the  Secretary  of  the 
Imperial   Treasury,   Burchard,   in  sitting    of   the   Reichstag   of    n    June, 
1883  (Sten.  Ber.  IV.  p.  2996),  in  which  the  special  sanction  of  a  law  by  the 
Bundesrat  even  when  returned  without  amendment  is  recognized. 


Il8  THE  GERMAN   EMPIRE 

Emperor,  according  to  Art.  17  of  the  Constitution,  belong 
the  engrossment  and  publication  of  the  imperial  laws,  to- 
gether with  the  supervision  of  their  execution.  Every  law 
is  an  act  of  will.  A  will  which  has  not  come  to  an  expression 
that  is  sensibly  cognizable  has,  however,  no  juristic  existence. 
Every  law,  therefore,  requires  for  its  validity  some  form  of 
declaration.  What  form  that  declaration  shall  assume 
depends  on  the  positive  provisions  of  the  constitution  under 
which  it  is  made.1  The  consent  of  the  Bundesrat  and  Reichs- 
tag to  the  draft  of  an  imperial  law  and  the  sanction  of  the 
Bundesrat  are  the  material  conditions  to  the  issuance  of  that 
law  under  the  Imperial  Constitution.  The  action  of  the 
Reichstag  has  no  binding  force  in  itself.  The  determination 
of  the  Bundesrat  to  sanction  the  law  does  not  include  the  ac- 
tual issuance  of  the  legal  command,  but  is  a  decision  that  this 
command  shall  issue  in  the  name  of  the  Empire.2  The 
formal  declaration  is  laid  by  the  Constitution  upon  the 
Emperor.3  It  is  he  who  engrosses  and  publishes  the  law. 

By  engrossment  —  Ausfertigung —  of  the  law  is  meant 
the  solemnis  editio  legis,  the  preparation  of  an  authentic 
source,  the  solemn  creation  of  a  documentary  original  of 
the  law.4  When,  therefore,  the  Emperor  engrosses  a  law, 
he  affirms  in  due  form  that  the  law  so  engrossed  conforms  in 
content  to  the  bill  passed  by  the  Bundesrat  and  Reichstag 
and  sanctioned  by  the  Bundesrat,  and  in  form  to  the  provi- 
sions of  the  Constitution.  In  short,  by  the  act  of  engross- 
ment the  Emperor  guarantees  the  formal  constitutionality 
of  the  law.  "It  presupposes,  therefore,  the  right  to  test 

1  See  discussion  by  Laband,  II.  pp.  u  ff.  and  Jellinek,  G.  &  V.  pp.  321  ff. 

2  Laband,  II.  p.  37. 

3  For  discussion  of  the  distinction  between  the  engrossment  and  pro- 
mulgation of  the  law  and  its  publication,  see  Laband,  II.  p.  20,  note  i. 

4  See  Jellinek,  G.  &  V.  p.  321. 


IMPERIAL  LEGISLATION  119 

the  manner  in  which  the  work  of  legislation  has  been  accom- 
plished. It  is  true  that  the  Emperor,  as  such,  has  no  right  of 
veto  against  an  imperial  law,  but  he  has  a  duty  to  investigate 
as  to  whether  the  law  has  received,  in  a  constitutional  manner, 
the  consent  of  the  Bundesrat  and  Reichstag  and  the  sanction 
of  the  bearer  of  imperial  sovereignty  as  represented  in  the 
Bundesrat.  He  has,  therefore,  to  prove  whether  the  vote  in 
the  Bundesrat  was  had  in  accordance  with  the  rules  laid  down 
in  Art.  7  of  the  Imperial  Constitution,  and  as  to  whether  the 
final  action  was  had  in  conformity  to  Arts.  5,  37,  or  78  of 
the  Constitution;  as  to  whether,  in  case  the  law  touches  the 
jura  singulorum,  it  was  assented  to  by  the  State  affected ;  as 
to  whether  the  Bundesrat  and  Reichstag  handled  the  bill  in 
accordance  with  the  existing  provisions ;  as  to  whether  there 
is  complete  agreement  between  the  drafts  assented  to  by 
both  bodies,  etc.  If  this  investigation  leads  to  a  negative 
result,  the  Emperor  has  not  only  the  right,  but  also  the  duty, 
to  refuse  the  engrossment  until  the  defect  is  remedied.  Even 
if  the  Emperor  should  err  in  his  conclusions,  nevertheless 
his  decision  is  valid,  for  there  is  no  higher  instance  which 
can  hold  him  to  the  promulgation  of  the  law.  There  is, 
therefore,  a  possibility  that  the  Emperor,  by  refusing 
on  a  formal  ground  to  promulgate  the  law,  may  exercise  a 
veto  power.  There  is  hardly  room  here,  however,  for  a 
political  danger.  The  " Ausjertigung"  of  the  law  does  not 
lie  wholly  in  the  arbitrary  choice  of  the  Emperor.  Respect 
for  the  Bundesrat  and  Reichstag,  for  public  opinion  and  for 
his  own  reputation,  render  a  misuse  of  the  power  conferred 
on  the  Emperor  quite  impossible.  When  the  Emperor 
therefore  perceives  that  a  law  has  come  into  being  without 
defect  so  far  as  the  provisions  of  the  Constitution  are  con- 
cerned, he  is  constitutionally  bound  to  engross  it."  l 
1  Laband,  II.  pp.  38,  39. 


I2O  THE  GERMAN  EMPIRE 

The  engrossment  of  a  law,  then,  on  the  part  of  the  Emperor 
is  a  sort  of  judicial  act.  It  involves,  in  proving  whether  a 
law  has  been  constitutionally  discussed,  passed,  and  sanc- 
tioned, a  determination  of  a  question  of  fact  and  the  applica- 
tion to  the  state  of  facts  of  certain  legal  rules  made  to  govern 
such  cases.1  The  "guarding  of  the  Constitution,"  as  that 
phrase  is  known  in  the  constitutional  law  of  the  United 
States,  the  right  of  the  judiciary  in  any  instance  to  pass  upon 
the  constitutionality  of  an  imperial  law,  or  the  right  to 
raise  the  question  of  constitutionality  in  any  suit  brought 
under  an  imperial  law,  is  absolutely  unknown  to  German 
theory  and  to  German  practice. 

The  form  in  which  the  engrossment  shall  be  effected  is  a 
matter  of  practice  rather  than  of  law.  There  is  no  imperial 
legislation  regulating  the  subject.  It  is  to  be  regarded,  how- 
ever, as  essential  that  the  law  shall  be  engrossed  in  docu- 
mentary form,  textually  accurate  and  complete,  and  provided 
with  the  autograph  signature  of  the  Emperor,  together  with 
the  date  and  the  imperial  seal.2  The  counter-signature  of 
the  Imperial  Chancellor  is  also  necessary.3  In  affixing  his 
counter- signature,  the  Imperial  Chancellor  assumes  the  re- 
sponsibility for  the  absolute  literal  accuracy  of  the  text,  its 
complete  correspondence  with  the  bill  actually  passed  by 
both  legislative  bodies,  and  its  formal  constitutionality.  No 
responsibility  is  assumed  by  the  Chancellor  for  the  material 
content  of  the  law,  nor  may  he,  by  withholding  or  delaying 
his  counter-signature,  defeat  or  obstruct  the  engrossment. 

(4)  The  Publication  of  a  Law. — The  order  for  the  publi- 
cation of  a  law  issues  from  the  Emperor,  in  conformity  to 
the  provisions  of  Art.  17  of  the  Imperial  Constitution,  and  is 

1  Jellinek,  G.  &  V.  p.  402.  *  Ibid.  p.  327. 

1  RVerf.  Art.  17.  Laband,  II.  p.  47,  citing  in  note  2  the  decision  of  the 
RCer.  of  13  June,  1882,  Entsch.  in  Civilsachen,  Bd.  8,  p.  3. 


IMPERIAL  LEGISLATION  121 

directed  to  the  Imperial  Chancellor.  So  clearly  is  this 
command  to  publish  associated  with  the  " Ausfertigung" 
of  the  law,  that  both  are  practically  included  in  one  and  the 
same  act;  for  the  engrossment  is  an  essential  condition  to 
publication,  and  the  publication  is  the  necessary  result  of 
engrossment.  The  Emperor  has  no  option  in  the  matter. 
Possessing  no  veto,  he  must  engross  a  law  passed  in  due 
form,  and  a  law  engrossed  must  be  published.  For,  in  the 
publication  of  the  law,  the  Emperor  does  not  act  as  an 
independent  factor  in  the  legislation  of  the  Empire,  but  only 
as  an  organ  to  which  the  publication  of  the  law  is  intrusted. 
When  the  publication  of  a  law  is  conferred  on  an  organ 
which  has  no  material  right  of  assent  to  the  law,  the  accep- 
tance of  the  bill  by  the  legislative  factors  has  as  its  necessary 
result  that  the  publication  must  follow.  This  obligation 
does  not  arise  out  of  the  law,  which  has  not  yet  acquired 
binding  force,  but  out  of  the  Constitution  of  the  State.1 

The  actual  publication  of  the  law  is  effected  through  an 
Imperial  Gazette  (Reichsgesetzblatt),  in  conformity  with  the 
provisions  of  Art.  2  of  the  Imperial  Constitution,  and  is  an 
official  act  of  the  imperial  government.  The  issues  of  the 
Imperial  Gazette  furnish  a  complete  collection  of  the  impe- 
rial laws,  —  and  the  only  authentic  collection.  No  law 
possesses  binding  force  which  is  not  printed  in  the  Gazette.2 
The  Gazette  is  issued  from  the  Department  of  the  Interior, 
and  the  Imperial  Chancellor  is  responsible  for  the  content 
of  it.  So  far  as  the  various  imperial  officials  are  concerned, 
the  Imperial  Gazette  is  the  final  authority  as  to  the  existence 
and  authenticity  of  a  law. 

Article  2  of  the  Constitution  declares  that  "  the  imperial 
laws  receive  their  binding  force  through  their  publication  at 

1  See  Meyer,  Antheil,  etc.,  p.  63,  Staatsr.  p.  507;  Laband,  II.  p.  27,  note  i. 

2  RVerj.  Art.  2. 


122  THE  GERMAN  EMPIRE 

the  hands  of  the  Empire,  which  takes  place  through  the 
medium  of  an  Imperial  Gazette."  As  to  this  clause  Laband 
says:  "In  truth,  the  binding  force  of  imperial  laws  rests 
not  upon  their  being  printed  in  the  Imperial  Gazette,  but 
upon  their  having  received  the  sanction.  But  this  sanction 
carries  with  it  the  Imperial  engrossment  and  the  order  to 
publish;  and  this  latter  results  in  the  publication  by  the 
Imperial  Chancellor  through  the  printing  of  the  law  in  the 
Imperial  Gazette.  This  publication,  which  takes  place  under 
the  responsibility  of  the  Imperial  Chancellor,  is  a  logical 
deduction  from  the  constitutionally  conferred  sanction,  and 
no  law  acquires  binding  force  without  publication  in  the 
Gazette.  The  apparent  effect  is,  therefore,  as  if  the  law 
actually  obtained  its  binding  force  through  publication  in  the 
Imperial  Gazette."1 

Unless  otherwise  provided  in  the  law  itself,  an  imperial 
law  goes  into  effect  at  the  expiration  of  fourteen  days  from 
the  date  of  its  publication  in  the  Imperial  Gazette.  Laws 
issued  for  the  Colonies  or  Protectorates,  however,  where  no 
specific  provision  is  made  in  the  laws  themselves,  go  into 
effect  in  from  two  to  four  months  after  date  of  publication  in 
the  Imperial  Gazette  in  Berlin,  the  more  distant  regions 
being  allowed  the  longer  period.2 

1  Laband,  II.  pp.  51,  52.  For  the  method  whereby  mistakes  in  the 
Gazette  are  corrected,  see  ibid.  pp.  52  ff. 

*  RVerj.  Art. 2.  See  also  Law  of  26  July,  1867  (BGBl.  p.  24);  Konsular- 
gerichtsbarkeitsgesetz,  7  April,  1900  (RGBl.  p.  213),  §  30;  and  Schutzgeb iets- 
gesetz,  9  November,  1900  (RGBl.  p.  1005),  5  3. 


CHAPTER  VII 
THE  IMPERIAL  CHANCELLOR1 

THE  office  of  Imperial  Chancellor  finds  its  legal  founda- 
tion in  Arts.  15  and  17  of  the  Imperial  Constitution,  more  par- 
ticularly in  Article  15,  Cl.  i,  which  reads,  "The  Chairmanship 
(Vorsitz)  in  the  Bundesrat  and  the  conduct  of  business  belong 
to  the  Imperial  Chancellor,  who  is  to  be  appointed  by  the 
Kaiser."  Article  1 7  declares  that  "  the  ordinances  and  decrees 
of  the  Kaiser  .  .  .  require  for  their  validity  the  counter- 
signature  of  the  Imperial  Chancellor,  who  thereby  assumes 
the  responsibility  for  them."  In  determining  the  position 
of  the  Imperial  Chancellor  in  the  constitutional  system  of 
Germany,  the  second  clause  of  Art.  15  is  also  of  importance. 
According  to  the  provisions  of  this  clause,  the  "Imperial 
Chancellor  may,  in  writing,  deputize  any  other  member  of  the 
Bundersat  to  represent  him,"  i.e.  to  act  as  his  substitute. 
The  word  "other"  here  is  significant.  The  direct  inference 
is  that  the  Imperial  Chancellor  must  be  a  member  of  the 
Bundesrat,  otherwise  the  word  has  no  meaning  and  is  wholly 
superfluous.  The  "prevailing  theory"  among  German 
jurists  is  that  under  the  wording  of  the  constitution  the 
Imperial  Chancellor  not  only  presides  over  the  Bundesrat, 
but  must  also  be  a  member  of  that  body.  The  Chancellor, 
it  is  to  be  noted,  is  appointed  by  the  Kaiser.  But  the  Kaiser, 

1  The  following  literature  may  be  referred  to:  Joel,  "Die  Substitutions- 
bejugniss  des  R.  K.  nach  deutschem  Staatsr."  Hirth's  Annalen,  1878,  pp. 
402  ff. ;  Hanel,  Studien,  II.  pp.  24  ff.,  31  ff. ;  Hensel,  "  Die  Stellung  des  R.  K., 
Hirth's  Annalen,"  1882,  pp.  i  ff. ;  material  collected  in  Hirth's  A  nnalen,  1886, 
pp.  321  ff.,  also  Laband,  Meyer,  Zorn,  etc.  in  loco. 

123 


124  THE  GERMAN  EMPIRE 

as  Kaiser,  has  no  power  to  appoint  a  member  to  the  Bundesrat. 
He  can  do  this  only  in  his  capacity  as  king  of  Prussia.  It 
follows  that  in  his  selection  of  a  Chancellor  for  the  Empire, 
the  Kaiser  must  either  restrict  his  choice  to  some  member 
of  the  Bundesrat  already  appointed,  or  must,  as  king  of 
Prussia,  appoint  to  membership  in  the  Bundesrat  the  man 
whom  he  wishes,  as  Kaiser,  to  make  Imperial  Chancellor. 
Even  if  it  should  be  conceded  that  there  is  no  legal  or  consti- 
tutional reason  why  the  Kaiser  in  his  selection  of  Chancellor 
should  be  limited  to  the  choice  of  a  Prussian  delegate  to  the 
Bundesrat,  nevertheless  political  expediency  would  compel 
such  self-limitation  on  the  part  of  the  Kaiser.  For  the  mem- 
bers of  the  Bundesrat  act  only  under  instructions  from  their 
home  government,  and  may  be  recalled  by  that  government 
at  any  time.  It  would,  therefore,  certainly  place  the  Kaiser 
in  an  awkward  position  as  head  of  the  imperial  administra- 
tion, should  his  Chancellor  be  subject  to  the  instructions  of 
any  government  other  than  that  of  Prussia,  or  exposed  to  a 
recall  at  any  moment.  Such  power  to  disturb  the  activities 
of  the  imperial  administration  could  scarcely  be  left  to  the 
whims  or  to  the  discretion  of  the  several  governments.  It 
would  seem,  therefore,  that  the  Imperial  Chancellor  must 
be  not  only  a  member  of  the  Bundesrat,  but  also  a  Prussian 
member  of  that  body.1 

On  reading  carefully  Arts.  15  and  17  of  the  Imperial  Con- 
stitution, it  becomes  at  once  apparent  that  the  Imperial  Chan- 
cellor occupies  a  dual  position,  or  plays  a  double  rdte,  in  the 
Empire.  As  a  member  of  the  Bundesrat  by  Prussian  ap- 
pointment, he  serves  as  an  organ  through  which  the  king  of 

1  See  Laband,  I.  p.  350;  Meyer,  Staatsr.  Sec.  124,  note  7;  Seydel,  Comm. 
p.  169,  also  his  refutation  of  the  contrary  position  assumed  by  Hensel,  — 
op.  cit.  pp.  10  ff.  —  in  Kritische  Vierteljahrschrijt  /.  Gesetzgeb.  und  Rechtswiss, 
N.  F.  V.  pp.  273  ff. ;  Grassmann,  in  Archiv /.  d.  off.  Recht,  1896,  pp.  309  ff . 


THE  IMPERIAL  CHANCELLOR  12$ 

Prussia  exercises  his  rights  as  a  member  of  the  Bund.  As 
Chancellor,  appointed  by  the  Kaiser,  he  is  the  chief  official 
of  the  Empire,  the  responsible  imperial  minister.  As  such 
imperial  minister,  the  Imperial  Chancellor  forms  the  apex 
of  the  system  of  administrative  authorities  in  the  Empire. 
He  is  the  "hochste  Reichsbehorde."  l  A  failure  to  keep 
steadily  in  mind  the  twofold  character  of  the  Chancellor 
will  inevitably  lead  to  confusion.  The  Imperial  Chancellor, 
as  a  member  of  the  Bundesrat  and  the  presiding  officer  of 
that  body,  is  the  plenipotentiary  of  the  king  of  Prussia, 
bound  by  his  instructions  and  responsible  to  the  Prussian 
king.  He  is  responsible  neither  to  the  Bundesrat  nor  to  the 
Reichstag  for  the  manner  in  which  he  acts  as  a  Prussian 
delegate.  As  a  member  of  the  Bundesrat  from  Prussia,  the 
Imperial  Chancellor  is  not  an  imperial  official,  nor  does  he 
come  within  the  provisions  of  the  "Law  governing  Imperial 
Officials."  In  his  capacity  as  a  member  of  the  Bundesrat, 
therefore,  he  is  not  an  imperial  administrative  authority. 
While,  from  the  standpoint  of  constitutional  law,  it  is  not 
necessary  for  the  Chancellor  to  be  at  the  same  time  a  member 
of  the  Prussian  Ministry,  yet  there  are  certain  political  reasons 
which  make  it  imperative  that  the  Imperial  Chancellor  should 
be  a  Prussian  minister,  and  should  take  part  in  the  delibera- 
tions and  counsel  of  the  Prussian  Ministry.2 
The  functions  of  the  Imperial  Chancellor,  as  an  imperial 

1  It  is  difficult  to  translate  the  German  word  " Behorde."  The  word  "au- 
thority" is  here  used  as  its  equivalent.  A  word  from  Laband  will  make  the 
meaning  clearer.  "An  office  is  a  sphere  of  State  activity  defined  by  public 
law.  .  .  .  There  belongs  to  an  office  not  only  a  sphere  of  State  activity 
but  also  a  corresponding  measure  of  legal  authority.  An  office  may  be  per- 
sonified and  regarded  as  the  permanent  subject  of  rights  and  duties,  in  dis- 
tinction from  the  official  who  temporarily  occupies  it.  It  is  in  this  sense  that 
the  office  (Ami)  is  called  an  'authority'  (Behorde).  The  term  ' Behorde' 
does  not  signify  an  individual,  but  an  institution."  Laband,  I.  pp.  338,  339. 

3  Laband,  I.  pp.  351,  352. 


126  THE  GERMAN  EMPIRE 

official,  lie  wholly  outside  the  sphere  of  his  activities  as  a 
Prussian  delegate  to  the  Bundesral.1  The  Imperial  Chan- 
cellor is  the  sole  responsible  minister  of  the  Empire,  the  su- 
preme administrative  authority.  In  other  words,  so  far  as  the 
administrative  authority  is  concerned,  the  administrative  system 
of  the  Empire  is  based  upon  a  principle  of  extreme  centraliza- 
tion. Though  the  Chancellor,  while  acting  as  a  Prussian  dele- 
gate to  the  Bundesrat,  is  not  within  the  provisions  of  the  "  Law 
governing  Imperial  Officials,"  yet  he  does  come  within  the 
provisions  of  that  law  when  acting  as  an  official  organ  of 
the  Kaiser.2  As  the  supreme  administrative  authority  of  the 
Empire  and  the  chief  imperial  official,  the  Chancellor  ac- 
knowledges only  the  Kaiser  as  his  superior,  and  receives 
orders  and  commands  from  him  alone.  The  direction  of 
imperial  policy  and  the  conduct  of  imperial  affairs  lie  in  the 
hands  of  the  Kaiser.  The  actual  work  in  matters  of  this 
sort  is  done  by  the  Chancellor,  but  in  performing  such  func- 
tions he  is  acting  merely  as  the  instrument  and  assistant  of  the 
Kaiser.  The  fundamental  principle  is  this:  the  Imperial 
Chancellor  as  the  instrument  and  assistant  of  the  Kaiser  has 
to  conduct  all  those  activities  which  constitute  the  preroga- 
tive of  the  Kaiser.3 

As  presiding  officer  of  the  Bundesrat,  the  Chancellor  has 
extensive  duties  to  perform,  regulated  in  detail  by  the  Stand- 
ing Orders  (Geschajtsordnung)  of  that  body.  The  Chan- 
cellor fixes  the  date  of  the  meeting  of  the  Bundesrat*  All 
communications  from  the  Reichstag?  and  the  proposals  of 

1  The  Imperial  Chancellor  may,  however,  as  a  member  of  the  Bundesrat, 
introduce  into  the  Bundfsrat  measures  emanating  from  the  Kaiser,  measures 
which  could  not  otherwise  be  brought  before  that  body,  since  the  Kaiser,  as 
such,  has  no  right  of  initiative.  Measures  introduced  in  this  way  directly 
by  the  Kaiser  are  regarded  as  Prussian  bills. 

1  Hanel,  op.  cit.  pp.  5  ff.  *  Ceschajlsord.  §  13. 

»  Laband.  I.  p.  352.  •  Ibid.  §  8. 


THE  IMPERIAL  CHANCELLOR  12? 

the  various  States,1  together  with  all  other  matters  addressed 
to  the  Bundesrat,  pass  through  his  hands.  He  keeps  the 
Committee  of  the  Bundesrat  on  Customs  and  Taxes  con- 
stantly informed  of  the  reports  from  the  several  imperial 
officials,2  and  lays  before  the  Committee  on  Accounts  a  draft 
of  the  Budget  and  an  annual  statement  of  the  imperial  in- 
come and  expenditures.3  Further,  as  the  official  represen- 
tative of  the  Bundesrat  outside  that  body,  the  Imperial 
Chancellor  publishes  the  appointment  of  the  members  of  the 
Bundesrat  in  the  Imperial  Gazette,  and  issues  the  decrees 
necessary  in  carrying  out  the  resolutions  of  the  Bundesrat* 
All  bills  passed  by  the  Bundesrat  are  transmitted  to  the  Reichs- 
tag by  the  Chancellor,  in  the  name  of  the  Kaiser.5  The 
Chancellor  has  no  discretion  in  the  transmission  of  these 
measures.  Should  he  chance  to  find  himself  in  disagreement 
with  the  contents  of  a  bill,  he  must  transmit  it  to  the  Reichs- 
tag notwithstanding.  The  only  alternative  is  a  demand  for 
his  dismissal  from  office.8  As  Imperial  Chancellor  he  may 
not  appear  on  the  floor  of  the  Reichstag  to  utter  his  views  on 
any  proposed  legislation.  This  he  may  do,  however,  as  a 
member  of  the  Bundesrat.  The  Imperial  Chancellor  may 
not  be  at  the  same  time  a  member  of  the  Reichstag."1 

As  the  highest  administrative  authority  in  the  Empire,  the 
Chancellor  has  under  his  control  all  the  other  administrative 
officials  in  so  far  as  they  are  imperial  officials.  They  are 
simply  ''bureaus"  of  the  Imperial  Chancellor,  and  enjoy,  in 
the  conduct  of  their  offices,  only  such  independence  as  the 
Chancellor  may  grant  to  them.  In  most  branches  of  the 


1  Ceschajtsord.  §  9.  3  Ibid.  §  21.  3  Ibid.  §  23. 

4  Ibid.  §  27.     These  resolutions  are  published  in   the  Imperial  Gazette, 
or  in  the  Centralblatt,  and  the  necessary  "proclamation"  is  signed  by  the 
Chancellor. 

5  RVerj.  Art.  16.  •  Ibid.  Art.  9.  7  Ibid.  Art.  9. 


128  THE  GERMAN   EMPIRE 

imperial  administration,  there  are  "Chiefs"  of  this  admin- 
istrative hierarchy,  about  whom  the  administration  in  that 
particular  line  is  centralized,  and  who  act  as  supreme  "au- 
thorities" in  matters  of  administrative  discipline.  At  the 
present  time  the  following  imperial  administrative  de- 
partments are  immediately  subordinated  to  the  Chancellor: 
The  Department  of  the  Interior;  the  Foreign  Office;  the 
Admiralty ;  the  Department  of  Justice ;  the  Treasury  Office ; 
the  Imperial  Railway  Department ;  the  Imperial  Post-office 
Department;  the  Imperial  Office  for  the  Administration  of 
the  Imperial  Railways.  Further,  the  administration  of  the 
Imperial  Bank  comes  under  the  control  of  the  Imperial 
Chancellor,  since  the  various  bank  officials,  including  the 
curators  and  the  directors,  are  subjected  to  his  direction. 
In  short,  there  are  no  administrative  authorities  of  the  Em- 
pire which  are  not  compelled  to  yield  implicit  obedience  to 
the  commands  of  the  Imperial  Chancellor.  The  heads  of  the 
various  departments,  therefore,  are  not  coordinates  of  the 
Imperial  Chancellor,  but  his  subordinates.  According  to 
the  constitutional  law  of  the  Empire,  the  Imperial  Chancellor 
has  no  colleagues.1  The  financial  boards  of  the  Empire,  — 
the  Administration  of  the  Imperial  Debt  and  the  Administra- 
tion of  the  Imperial  Invalidenfonds,  —  while  subjected  to  the 
superior  direction  of  the  Imperial  Chancellor,  nevertheless,  so 
far  as  the  legal  conduct  of  their  official  duties  is  concerned, 
are  independent  and  unconditionally  responsible.  Further- 
more, the  various  judicial  Boards  of  the  Empire  are  wholly 
independent,  and  are  subjected  only  to  the  laws.  While 
the  imperial  officials  are  appointed,  theoretically,  by  the 
Kaiser,  yet,  through  various  laws  and  decrees,  the  actual  ap- 
pointment and  the  issuance  of  certain  regulations  to  them 
take  place  through  the  Imperial  Chancellor.2 

1  Hanel,  Studien,  II.  p.  19.  2  Ibid.  pp.  19  ff. 


THE  IMPERIAL  CHANCELLOR  129 

The  Imperial  Chancellor  is  the  organ  through  whom  trans- 
actions between  the  States,  on  the  one  side,  and  the  Kaiser, 
Bundesrat,  and  Reichstag,  on  the  other,  are  affected.  While 
the  Chancellor  is  the  highest  imperial  authority  and  the  su- 
preme imperial  official,  he  is  in  no  sense  the  superior  of  the 
various  State  authorities  and  officials.  Where  an  imperial  law 
is  properly  carried  into  execution  by  the  State  officials,  these 
are  not  the  subordinates,  but  the  coordinates,  of  the  Imperial 
Chancellor.  The  peculiar  relation  of  the  Chancellor  to  Prus- 
sia has  already  been  noted.  According  to  a  provision  of 
the  Schlussprotokoll  to  the  Treaty  of  23  November,  1870, 
Bavaria  has  the  right  to  preside  in  the  Bundesrat,  should  the 
Imperial  Chancellor  be  prevented  from  so  doing,  and  no 
Prussian  delegate  be  available. 

According  to  Art.  5  of  the  Imperial  Constitution,  the  leg- 
islation of  the  Empire  is  'carried  on  by  the  Bundesrat  and 
Reichstag,  a  majority  vote  of  both  bodies  being  necessary  and 
sufficient  for  the  passage  of  a  bill.  This  article  of  the  Con- 
stitution would  seem  to  stand  in  contradiction  to  Art.  2, 
which  declares  that  a  law  comes  into  force  by  publication  in 
the  Imperial  Gazette,  and  Art.  17,  which  states  that  all  laws 
shall  be  published  by  the  Kaiser  and  that  all  orders  and  decrees 
of  the  Kaiser  need  for  their  validity  the  counter- signature  of  the 
Imperial  Chancellor.  While  a  majority  vote  of  the  legislative 
bodies  is  therefore  necessary,  it  would  not  seem  to  be  suffi- 
cient. Article  5  is  perfectly  true,  however,  so  far  as  the  mate- 
rial content  is  concerned.  The  determination  of  the  material 
content  of  a  bill  requires  the  majority  vote  of  both  legislative 
bodies.  The  publication  of  the  law  and  the  counter- signing 
of  the  Imperial  Chancellor  are  matters  of  formal  necessity, 
without  which  the  law  has  no  binding  force.  The  Imperial 
Chancellor  has  no  lot  nor  part,  as  Chancellor,  in  fixing  the 
content  of  a  law,  though  his  political  influence  may  be,  and 


130  THE  GERMAN  EMPIRE 

usually  is,  considerable.  A  measure,  therefore,  placed  in  the 
hands  of  the  Chancellor  for  his  signature,  or  for  transmission, 
may  not  be  in  any  wise  modified  or  amended  by  him,  or  by 
his  subordinates.  It  is  his  duty  to  transmit  the  bill  to  the 
Reichstag,  although  he  may  not  agree  to  its  provisions.  Nor 
has  the  Imperial  Chancellor,  as  such,  any  function  in  imparting 
the  sanction  to  the  law.  Further,  though  a  law  comes  into 
force  only  when  published,  it  is  the  duty  of  the  Kaiser  to 
order  its  publication  when  it  has  received  the  sanction  of  the 
Bundesrat.  This  duty  is  imperative,  not  discretionary,  and 
when  the  Kaiser  has  ordered  the  Imperial  Chancellor  to  pub- 
lish a  law,  this  latter  official  may  not  refuse  so  to  do.  Al- 
though the  Imperial  Chancellor,  therefore,  is  an  essential 
organ  in  bringing  a  law  into  formal  operation,  yet  he  acts, 
in  a  way,  automatically.  Should  a  law,  as  to  its  content,  be 
such  an  one  as  the  Chancellor  disapproves,  he  may  not  "kill 
the  bill"  by  withholding  either  its  transmission  or  his  signa- 
ture. His  only  alternative  in  such  a  case  would  be  to  resign, 
or  to  persuade  the  Bundesrat  to  withdraw  the  obnoxious  meas- 
ure.1 

Article  17  of  the  Imperial  Constitution,  in  laying  down  the 
rule  that  the  ordinances  and  decrees  of  the  Kaiser  require 
the  counter-signature  of  the  Chancellor,  declares  also  that  in 
thus  counter- signing  the  measure  the  Chancellor  assumes  the 
responsibility  therefor.  Among  German  writers  there  has 
been  no  little  discussion  as  to  whether  this  responsibility 
was  a  legal  one  or  merely  political  in  its  nature.  So  far  as  the 
practical  consideration  of  this  responsibility  is  concerned,  the 
discussion  is  of  small  moment.  Whether  legal  or  political, 
there  is  no  legal  means  by  which  the  Chancellor  can  be  reached 
as  a  responsible  minister.  So  far  as  any  ministerial  respon- 
sibility, in  the  sense  of  constitutional  law,  is  concerned,  Art. 

1  See  Hanel,  Studien,  I.  pp.  49  ff. 


THE  IMPERIAL  CHANCELLOR  131 

17  is  a  lex  imperjecta.  For  there  is  no  provision  made  with 
reference  to  the  matter  of  bringing  a  complaint  against  the 
Chancellor  to  the  Reichstag,  nor  is  there  any  legal  process 
set  forth  by  which  this  responsibility  shall  be  made  effective. 
Ministerial  responsibility,  therefore,  so  far  as  the  Chancellor 
is  concerned,  is  not  a  legal  institution.1  The  responsibility 
of  the  Imperial  Chancellor  is,  as  Laband  observes,  only  a 
political  principle  that  still  awaits  its  realization  through 
legal  forms,  but  which,  nevertheless,  is  not  wholly  without 
effect.  It  lays  the  foundation  for  a  sort  of  parliamentary 
responsibility,  inasmuch  as  the  Imperial  Chancellor  cannot 
escape  attacks  of  the  Bundesrat,  in  the  meeting  of  that  body, 
on  his  conduct  of  affairs,  and  he  must  stand  up  against  the 
speeches  of  the  Reichstag.  "Responsibility  is  coextensive 
with  competence.  Within  the  sphere  of  his  own  adminis- 
tration of  imperial  affairs,  therefore,  the  Imperial  Chancellor 
is  responsible  for  the  conduct  of  the  whole  official  activity 
of  the  imperial  departments,  in  conformity  to  the  laws  of 
the  Empire  and  in  harmony  with  its  foreign  and  internal 
policy.  Touching  the  autonomy  of  the  States,  the  respon- 
sibility of  the  Chancellor  goes  only  to  the  supervision  assigned 
to  the  Empire  in  such  matters.  Further  than  this  in  State 
affairs  the  Imperial  Chancellor  may  not  go." 2 

By  the  terms  of  Art.  15  of  the  Imperial  Constitution,  the 
Chancellor  has  the  right  to  delegate  to  any  other  member  of 


1  Laband,  I.  p.  355;   Seydel,  Comnt.  p.  178. 

2  "Ich  bin  meines  Erachtens  dafiir  verantwortlich,  dass  an  der  Spitze 
der  einzelnen  Zweige  der  Reichsverwaltung  Leute  stehen,  die  ihre  Verwal- 
tung  im  Grossen  und  Ganzen  in  der  Richtung  des  Stromes  fiihren,  den  das 
deutliche  politische  Leben  nach  der  augenblicklichen  Richtung  des  deutschen 
Geistes  und  der  deutschen  Geister  zu  laufen  genothigt  ist  .  .  .  im  Wesent- 
lichen  aber  dafiir,  dass  an  jeder  Stelle,  die  zu  besetzen  ist,  Jemand  steht, 
der  nach  dem  gewohnlichen  Ausdrucke  tanti  ist,  diese  Geschafte  zu  besorgen." 
Bismarck,  im  Reichstag,  i  December,  1874. 


132  THE  GERMAN  EMPIRE 

the  Bundesrat  the  power  to  represent  him  as  the  presiding 
officer  of  the  Bundesrat  in  conducting  its  business.  As  a 
matter  of  course,  the  Chancellor  may  also  assign  the  per- 
formance of  the  duties  laid  upon  him  to  subordinate  officials. 
In  all  such  cases,  the  Imperial  Chancellor  remains  respon- 
sible for  acts  done  in  his  stead,  since  the  Constitution  recog- 
nizes but  one  responsible  head  of  the  administration  —  the 
Imperial  Chancellor.  By  an  agreement  with  Bavaria,  as 
already  noted,  it  was  stipulated  that  when  the  Chancellor 
felt  the  necessity  for  choosing  a  substitute  to  represent  him 
as  presiding  officer  of  the  Bundesrat,  and  to  take  his  place 
in  conducting  the  business  of  the  Bundesrat,  should  no 
Prussian  member  be  available,  the  choice  must  fall  upon  a 
Bavarian  delegate.  This  provision  of  the  treaty  is,  as  a 
matter  of  fact,  a  mere  empty  honor  for  Bavaria.  The  occu- 
pation of  the  chair  of  the  presiding  officer  in  the  Bundesrat 
does  not  give  Bavaria  any  advantage  in  the  settlement  of 
public  questions.  Prussia  is  still  Praesidium,  and  the  votes 
assigned  to  the  Praesidium  by  the  Constitution  still  belong 
to  Prussia,  no  matter  who  occupies  the  chair  of  presiding 
officer  in  the  Bundesrat. 

The  law  of  17  March,  I878,1  provides  for  another  form  of 
substitute  for  the  Imperial  Chancellor,  not  in  his  capacity 
as  presiding  officer  of  the  Bundesrat,  but  as  imperial  minister. 
This  law  does  not  affect  Art.  15  of  the  Constitution.  It 
provides  for  the  appointment  of  a  substitute  for  the  Imperial 
Chancellor,  the  appointment  to  be  made  by  the  Kaiser,  and 
not,  as  in  the  other  case,  by  the  Chancellor  himself.  In 
making  such  appointment,  however,  the  Kaiser  is  not  left 
wholly  to  his  own  discretion,  for  the  law  reads,  in  §  i,  that 
the  appointment  of  a  substitute  for  the  Imperial  Chancellor, 
in  the  exercise  of  the  duties  laid  upon  him  by  the  Constitu- 
tion and  laws  of  the  Empire,  may  be  made  by  the  Kaiser 

1  RGBl.  p.  7. 


THE  IMPERIAL  CHANCELLOR          133 

"upon  motion  of  the  Imperial  Chancellor  in  cases  where  he 
is  hindered  from  performing  his  functions."  It  is  the  Chan- 
cellor himself,  then,  who  decides  whether  he  is  hindered 
from  performing  his  functions;  and  in  making  the  appoint- 
ment, it  is  the  Imperial  Chancellor,  not  the  Kaiser,  who 
makes  the  initial  move  in  the  matter.  In  other  words,  the 
Chancellor  may  ask  for  a  substitute  if  he  chooses,  but  is 
under  no  compulsion  to  do  so.  Moreover,  the  law  recognizes 
two  kinds  of  responsible  substitute:  a  general  substitute, 
or  Vice- Chancellor,  who  assumes  the  general  duties  and 
functions  of  the  Imperial  Chancellor;  and  the  special  sub- 
stitute, or  substitute  in  special  departments  of  the  administra- 
tion of  the  Empire,  who  is  appointed  to  carry  on  the  functions 
of  the  Imperial  Chancellor  in  some  one  of  the  particular 
branches  of  the  administration.  In  choosing  a  Vice  Chan- 
cellor, the  Kaiser  is  not  restricted  in  his  choice;  but  in  the 
selection  of  the  departmental  substitutes  the  law  confines 
the  choice  of  the  Emperor  to  the  heads  of  the  administrative 
branches  of  the  government  under  the  Chancellor. 

These  substitutes  may  counter- sign  the  various  orders  and 
decrees  of  the  Kaiser  and  may  perform  the  functions  and 
assume  the  obligations  laid  by  law  and  by  the  Constitution 
on  the  Chancellor.  The  substitutes  are  responsible  politi- 
cally for  their  governmental  acts,  and  the  Imperial  Chancellor 
is  therefore  released  from  the  responsibility.1  The  Imperial 
Chancellor  is,  however,  given  authority  by  the  law 2  to  inter- 
fere at  any  time  and  to  resume  control  of  matters  at  any  stage 
of  the  official  business.  Hence,  as  Laband  observes,  all  the 
departments,  in  spite  of  the  appointment  of  a  substitute,  re- 
main subject  to  the  direction  and  immediate  interference  of 
the  Chancellor,  and  for  that  reason  he  also  remains  to  a 
certain  degree  responsible. 

1  Laband,  I.  p.  358.  *  §  i. 


CHAPTER  VIII 

CITIZENSHIP  UNDER  THE   GERMAN   CONSTITU- 
TION1 

"THE  modern  State  rests  upon  the  idea  of  association 
(Genossenschajt}.  It  is  a  corporative  society  whose  members 
are  human  beings.  In  this  capacity,  these  members  are 
called  'Staatsangehorige' —  those  who  belong  to  the  State. 
As  respects  rights  and  duties,  they  are  sharply  distinguished 
from  the  individuals  who  dwell  in  the  State,  or  reside  there, 
without  belonging  to  it,  —  the  foreigners.  The  content  of 
this  membership  consists  of  the  totality  of  rights  and  duties 
which  they  possess  as  over  against  the  State.  From  the  side 
of  duty,  their  relation  is  best  indicated  by  the  word  'sub- 
ject'; from  the  side  of  rights  it  is  best  designated  by  the 
word  'citizen'  (Staatsburger)."2 

Theoretically,  the  task  of  differentiating  the  foreigners 
from  the  subjects  and  citizens  of  a  State  would  seem  to  be  an 
easy  task,  in  fact,  almost  a  mechanical  act.  This  is  particu- 
larly true  of  the  unitary  State.  Here  there  arises  a  single 
question:  What  is  the  relation  of  this  person  to  this  State 
as  against  any  and  all  foreign  States?  In  a  Federal  State 
the  matter  is  complicated  by  the  fact  that  every  individual 
stands  in  a  dual  relationship :  on  the  one  hand,  he  sustains 
certain  relations  to  the  Federal  State  as  a  whole ;  and  on  the 
other,  he  sustains  certain  relations  to  the  State  in  which  he 
may  reside,  or  in  which  he  may,  in  whatever  way,  have 

1  For  an  extensive  literature,  see  Laband,  I.  p.  122,  note. 

a  Anschiitz  in  Holtzendorffs  Encyclop.  6th  edition,  1904,  II.  p.  527. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      135 

obtained  citizenship.  The  moment  an  attempt  is  made  to 
define  the  status  of  a  person  in  a  Federal  State,  therefore, 
not  one  question,  but  several,  must  be  answered :  What  is 
the  relation  of  this  person  to  the  Federal  State,  as  against  any 
and  all  foreign  States?  What  is  the  relation  of  this  person 
to  the  State  in  which  he  resides?  What  is  his  relation  to  the 
other  federated  States  in  the  Union?  Further,  is  it  possible 
to  be,  or  to  become,  a  citizen  of  one  of  the  States  and  not  a 
citizen  of  the  Federal  State?  Are  there  two  independent  citi- 
zenships, coordinate,  but  each  occupying  a  distinct  sphere; 
or  is  there  a  double  citizenship  of  such  a  nature  that  the  one 
is  dependent  on  the  other,  exists  because  of  the  other,  not 
coordinate,  but  subordinate?  If  this  be  the  case,  which  is 
the  primary  citizenship?  Does  citizenship  in  one  of  the 
federated  States  exclude  citizenship  in  another  at  the  same 
time?  These,  and  many  other  questions,  grow  out  of  the 
very  nature  of  the  Federal  State.  As  a  type  of  such  State, 
the  German  Empire  must  needs  answer  them.  The  answers 
given  by  the  various  German  jurists  are  affected  by  the  views 
which  they  hold  with  respect  to  the  nature  of  the  Federal 
State  in  general  and  of  the  German  Empire  in  particular.1 

The  Federal  State  was  regarded  by  the  earlier  jurists  as  a 
political  or  legal  duality:  on  the  one  side,  the  collective  or 
joint  State,  the  Federal  State  as  a  whole;  and  on  the  other 
side,  the  individual  State  or  States.  Each  member  of  this 
duality  moved  in  its  own  well-defined  sphere,  and  exercised 

1  These  views  as  to  the  nature  of  citizenship  range  from  that  of  Seydel, 
on  the  one  extreme,  who  denies  the  existence  of  any  citizenship  of  the  Em- 
pire, to  that  of  Le  Fur,  who  denies  the  existence  of  any  State  citizenship. 
Seydel' s  theory  is  based  on  his  conception  of  the  Empire  as  a  "  Staatenbund," 
which,  of  course,  cannot  have  citizens  of  its  own  (see  Comm.  p.  50;  Bayr. 
Staatsr.  I.  p.  294) ;  while  Le  Fur  (Etat  federal,  p.  692  ff.)  maintains  that  the 
members  of  the  Union  have  lost  the  character  of  States,  and  hence  cannot  have 
citizens. 


136  THE  GERMAN   EMPIRE 

its  own  well-defined  powers.  Sovereignty  was  possessed 
in  full  by  neither,  but  was  parted  between  them.  The 
relation  existing  between  the  Federal  State  and  the  federated 
States  was  not  one  of  subordination,  but  of  coordination. 
Citizenship,  therefore,  was  a  relation  established  between  the 
individual  and  two  coordinated  States,  and  this  relation  was 
an  immediate  one  in  both  instances.  Moreover,  the  two 
citizenships  were  independent  of  each  other.  This  view 
has  prevailed  among  a  majority  of  writers  on  German  con- 
stitutional law,  —  that  besides  the  citizenship  of  the  individual 
State,  there  exists  also  an  independent  citizenship  of  the 
Empire,  palpably  different  therefrom.1 

Against  this  view  Laband  argues  somewhat  at  length, 
basing  his  reasoning  upon  a  divergent  view  of  the  nature  of 
the  Federal  State.2  To  state  his  position  briefly,  Laband 
declares  that  every  attempt  to  define  the  two  citizenships 
and  to  delineate  them,  setting  the  one  over  against  the  other, 
has  proven  impossible.  "There  are  not  two  spheres  of 
State  life,  the  one  of  which  is  occupied  by  the  citizen  of  the 
Empire,  and  the  other  by  the  citizen  of  the  State.  Upon 
whatever  field  in  the  political  life  one  may  direct  his  gaze, 
almost  at  no  point  can  one  determine  where  the  individual 
is  a  citizen  of  the  State  and  where  he  is  a  citizen  of  the  Em- 
pire. As  a  rule,  he  is  both  at  the  same  time."  The  correct 
relation  between  citizenship  of  a  State  and  citizenship  of  the 

1  So  Von  Mohl,  Bundesstaatsrecht  der  Vereinigten  Staaten,  p.  380,  says: 
"Since  the  Bund  consists  of  two  different  sorts  of  States,  the  Federal  State 
and  the  members  of  the  Bund,  so  each  inhabitant  has  a  twofold  citizenship, 
— that  of  the  special  State  in  which  he  lives,  and  also  the  general  citizenship 
of  the  Bund."  Waitz,  Politik,  p.  200,  writes:  "The  members  of  a  Federal 
State  constitute  one  people,  which  has  received  a  double  political  (Staatliche) 
organization.  In  the  one,  they  take  part  in  whatever  individual  State  they 
dwell,  since  not  through  the  individual  State  but  independently  of  it  are  they 
citizens  of  the  collective  State." 

3  Laband,  I.  pp.  123  ff. 


CITIZENSHIP   UNDER  THE   GERMAN   CONSTITUTION      137 

Empire  grows  out  of  the  nature  of  a  Federal  State.  Laband's 
view  of  the  nature  of  the  Empire,  therefore,  determines  his 
view  of  this  relationship.  The  Federal  State  (Bundesstaat), 
he  argues,  is  a  composite  State,  whose  members  are  the 
several  individual  or  federated  States.  The  power  of  the 
Federal  State  over  the  individual  States  is  sovereign  power. 
The  individual  States  cannot  be  separated  from  that  which 
constitutes  their  substratum,  that  is,  from  their  people,  in 
determining  the  subordination  of  those  States  to  the  Empire. 
They  come,  both  as  land  and  people,  under  the  sovereign 
power  of  the  Empire.  The  jurisdiction  of  the  Empire  over 
the  State  involves,  therefore,  jurisdiction  over  the  citizens 
of  that  State,  no  matter  in  what  form  such  jurisdiction  may 
assert  itself.  "Because  the  individual  is  a  citizen  of  Prussia 
or  of  Saxony,  and  because  the  State  of  Prussia  and  the  State 
of  Saxony  belong  to  the  Empire,  and  are  subject  to  the  power 
of  the  Empire,  therefore  is  the  Prussian  and  the  Saxon  a 
member  of  the  Empire  and  subject  to  the  power  of  the 
Empire.  The  members  of  a  federated  State  are  not  inde- 
pendent of  it,  but  through  it  are  members  of  the  Federal 
State."  The  individual  has  not  twro  State  powers  over  him, 
one  of  which  is  coordinate  with  the  other,  each  of  which 
possesses  a  part  of  the  magisterial  rights ;  but  he  has  over  him 
two  State  powers,  one  of  which  is  subordinate  to  the  other.1 
Citizenship  in  the  Empire  is  no  independent  relation,  but  it 
expresses  in  a  single  word  two  united  characteristics:  mem- 
bership in  a  State  which  is  a  member  of  the  Empire.  The 
relation  of  a  subject  to  the  Empire  is  not  immediate,  it  is 
mediate.  The  individual  State  is  the  medium. 

1  "  One  may  compare  the  Empire  to  a  number  of  houses  over  which  a 
common  dome  is  arched.  The  inmates  do  not  dwell  partly  under  the  sepa- 
rate roof  of  their  house  and  partly  under  the  common  dome,  but  under  both 
at  the  same  time." 


138  THE  GERMAN  EMPIRE 

From  this  position,  certain  consequences  logically  flow. 
In  the  first  place,  the  answer  to  the  question,  Which  citi- 
zenship is  primary?  is  at  once  suggested.  The  primary 
citizenship  must  be  the  State  citizenship,  since  it  alone  is 
immediate.  Further,  State  citizenship  carries  with  it  citi- 
zenship of  the  Empire.  No  supplementary  act  is  necessary 
in  order  to  convert  State  citizenship  into  imperial  citizenship. 
State  citizenship  is  the  essential  condition  to  the  acquiring 
of  the  citizenship  of  the  Empire.1  No  one  can  become  a 
citizen  of  the  Empire  without  first  becoming  a  citizen  of  a 
State.  There  is  no  naturalization  immediately  by  the 
Empire.  In  like  manner  the  loss  of  State  citizenship  carries 
with  it  the  loss  of  citizenship  in  the  Empire. 

In  the  second  place,  citizenship  of  a  State  may  change 
without  in  any  wise  affecting  the  citizenship  of  the  Empire, 
provided  the  individual  retains  his  citizenship  in  some  State 
within  the  Empire.  A  change  of  State  citizenship  dissolves 
certain  relations  which  exist  between  a  citizen  and  the  State 
from  whose  citizenship  he  withdraws,  and  creates  certain 
new  relations  between  him  and  the  new  State  into  whose 
citizenship  he  is  received,  but  it  does  not  disturb  his  rela- 

1  As  to  the  application  of  this  principle  to  Alsace-Lorraine,  see  Laband, 
I.  p.  126,  note  i;  Meyer,  Staatsr.  p.  199,  note  u.  Cahn,  Das  Reichsgesetz 
uber  die  Erwerbung  und  den  Verlust  der  Reichs-  und  Staatsangehorigkeit 
vom  I  Juni,  1870,  Berlin,  1896,  p.  12,  says:  "  Das  in  Gemassheit  des  §  i 
des  Reichgesetzes  vom  9  Juni,  1871  (RGBL.  212),  mit  dem  Deutschen  Reiche 
fur  immer  staatsrechtlich  vereignigte  Elsass-Lothringen  ist  erst  auf  Grand  des 
Art.  2  des  Reichgesetzes  vom  25  Juni,  1873  (RGBl.  161),  dem  Bundesgebiete 
eingetreten.  Elsass-Lothringen  ist  jedoch  kein  mit  eigener  Staatshoheit 
bekleideter  selbststandiger  Bundesstaat,  sondern  unmittelbares  Reichsland 
'in  welchem  die  Staatsgewalt  durch  den  Kaiser  ausgeiibt  wird'  (§3  des 
Reichgesetzes  vom  9  Juni,  1871).  Die  angehorigkeit  in  Elsass-Lothringen 
heisst  auch  nicht  'Staatsangehorigkeit,'  sondern  'Landesangehorigkeit.' 
Nachdem  das  Gesetz  vom  i  Juni,  1870,  in  Elsass-Lothringen  eingefiihrt  ist 
finden  die  in  dem  Gesetze  vorkommende  Worte  'Bundesstaat'  und  'Staats- 
angehorigkeit' auf  das  Reichsland  und  die  elsass-lothringischen  Landesange- 
horigkeit anwendung." 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      139 

tionship  to  the  Empire.  In  other  words,  while  an  individual 
becomes  a  citizen  of  the  Empire  by  reason  of  his  citizenship 
in  one  of  the  States,  his  citizenship  in  the  Empire,  once 
acquired,  does  not  depend  for  its  continuance  upon  the 
retention  of  his  citizenship  in  that  particular  State,  but 
merely  upon  the  retention  of  his  citizenship  in  some  State 
belonging  to  the  Empire. 

I.  The  Acquirement  o]  Citizenship  in  the  German  Empire. 
—  The  Imperial  Constitution  makes  no  provision  with  refer- 
ence to  the  acquirement  or  loss  of  citizenship,  leaving  the 
matter,  under  Art.  4,  i,  to  imperial  legislation.  Such  legis- 
lation was  had  i  June,  1870,  in  the  form  of  a  "Law  on  the 
Acquirement  and  Loss  of  Federal  and  State  Citizenship."1 
By  the  passage  of  this  law,  all  the  inequalities  and  peculiari- 
ties of  the  legislation  hitherto  existing  were  done  away  with, 
and  a  uniform  system  was  introduced  for  the  whole  imperial 
territory.2  Under  the  present  law  in  Germany,  citizenship 
may  be  acquired  in  four  ways. 

i.  By  Birth.  —  All  children  born  to  German  parents  are 
German  citizens,  whether  they  are  born  on  German  soil  or 
abroad ;  whether  born  in  the  State  wherein  the  father  — 
or  mother  —  has  citizenship,  or  in  one  of  the  other  federated 
States.  In  any  and  all  cases,  a  child  born  in  wedlock  ac- 
quires, through  birth,  the  citizenship  of  the  father;  a  child 
born  out  of  wedlock  acquires  the  citizenship  of  the  mother.3 

1  RGBl.  p.  355.     See  also  Triepel,  pp.  74  ff. 

2  For  an  interesting  brief  account  of  the  situation  prior  to  the  passage  of 
the  law,  see  Sten.  Ber.  d.  Reichstags,  for  1870,  I.  p.  6,  and  III.  pp.  153-160. 
Found  also  in  Cahn,  op.  cit.  pp.  i  ff. 

3  Law  of  i  June,  1870,  Sec.  3.     As  to  the  determination  of  the  question 
whether  a  child  is  sprung  from  a  valid  or  invalid  marriage,  and  whether, 
therefore,  it  is  to  be  given  the  citizenship  of  the  father  or  that  of  the  mother, 
see  Laband,  I.  pp.  150,  151;   Cahn,  op.  cit.  notes  2  and  3  to  §  3;  Arndt, 
Staatsr.  pp.   53,  54.     Compare   BUrg.   Cesetzb.    §§   1591-1600,  1565-1569, 

1699. 


I4O  THE  GERMAN  EMPIRE 

In  determining  the  question  of  citizenship  by  birth  the  prin- 
ciple of  jus  sanguinis  is  held,  not  that  of  jus  soli.  Hence  chil- 
dren of  foreign  parents,  born  on  German  soil,  do  not  from  that 
fact  alone  acquire  German  citizenship.  Moreover,  in  deter- 
mining the  question  of  the  State  citizenship  of  a  child  born  of 
German  parents,  the  domicile  or  residence  of  the  parents  at 
the  time  of  such  birth  has  no  influence  or  effect  whatever. 
For,  unlike  the  principle  which  prevails  in  the  United  States, 
where  the  primary  citizenship  is  citizenship  of  the  Union 
and  not  that  of  the  State,  citizenship  in  the  State  is  not 
changed  in  Germany  when  the  domicile  is  removed  from  one 
State  of  the  Empire  to  another.  State  citizenship  is  retained 
until  the  relationship  is  dissolved  on  the  motion  of  the  party 
himself,  by  a  judgment  rendered  by  a  competent  authority, 
or  in  one  of  the  other  ways  in  which  citizenship  may  be  lost 
under  the  law.  It  is  possible,  therefore,  for  a  person  to  have 
a  domicile  in  one  State  of  the  Empire,  and  citizenship  at  the 
same  time  in  another  State  of  the  Empire.  In  fact,  as  La- 
band  points  out,1  it  is  possible  for  a  family,  which  had  re- 
moved from  their  home  State  to  another,  and  there  settled, 
to  retain  for  countless  generations  the  citizenship  of  the  State 
from  which  they  had  originally  migrated,  through  this  prin- 
ciple of  acquiring  citizenship  by  birth,  and  in  time  the 
determination  of  citizenship  might  be  attended  with  great 
difficulties. 

1  Laband,  I.  p.  150.  He  adds:  "  In  Verbindung  mit  der  Freiziigigkeit, 
welche  innerhalb  des  ganzen  Reichsgebietes  besteht,  wird  dieses  Grundsatz 
es  daher  im  Laufe  der  Zeit  immer  schwieriger  machen,  die  Staatsangehorig- 
keit  festzustellen,  und  an  grossen  Verkehrsmittelpunkten  mit  schnell  wech- 
selnder  Bevolkerung  wird  bald  in  verhaltnissmassiger  kiirzer  Zeit  auch  die 
ansassige  Bevolkerung  aus  Staatsangehorigen  der  verschiedensten  Bundes- 
staaten  zusammengesetzt  sein,  von  denen  Jeder  seine  Staatsangehorigkeit 
in  alle  Ewigkeit  vererben  und  in  jedem  beliebigen  Bundesstaat  mitnehmen 
kann.  So  muss  dies  nothwendig  dahin  fuhren,  die  Staatsangehorigkeit 
immer  mehr  der  Reichsangehorigkeit  gegeniiber  zuriicktreten  zu  lassen." 


CITIZENSHIP  UNDER  THE   GERMAN   CONSTITUTION      141 

The  adoption  of  a  child  by  a  German  citizen  does  not 
confer  upon  that  child  the  citizenship  of  the  adoptive 
father.1 

2.  By  Legitimation.  —  "If  the  father  of  an  illegitimate 
child  is  a  German,  and  the  mother  does  not  possess  the  State 
citizenship  of  the  father,  the  child  acquires,  through  legitima- 
tion effected  in  accordance  with  the  legal  provisions  covering 
such  matters,  the  State  citizenship  of  the  father."  2  As  to 
the  explicit  method  of  legitimation  the  law  is  silent.  It  is 
sufficient  for  the  purpose  of  conferring  the  State  citizenship 
of  the  father  upon  the  legitimized  child  that  the  legitimation 
takes  place  in  conformity  with  the  legal  provisions  in  force  in 
the  State  of  which  the  father  is  a  citizen.  The  various  State 
codes,  however,  have  been  superseded  by  the  Code  of  Civil 
Law  for  the  Empire,  which  provides  for  the  legitimation  of 
children  born  out  of  wedlock.  Such  legitimation  may  be 
effected  by  marriage,3  or  by  declaration  of  legitimacy  by  the 
competent  State  authority  in  the  State  to  which  the  father 
belongs,  as  citizen,  or,  in  case  the  father  is  at  the  time  a  citizen 
of  no  State,  the  declaration  may  be  made  by  the  Imperial 
Chancellor.4  In  legitimation  through  declaration,  it  is  not 
the  domicile  of  the  father,  but  the  State  citizenship  of  the  father, 
which  determines  the  question  as  to  the  authority  competent 

1  Law  of  i  June,  1870,  §  2;  Cahn.  op   tit.  p.  16. 

3  Law,  §  4.  In  such  case,  the  child  loses  the  citizenship  of  the  mother, 
which  it  had  possessed  up  to  the  time  of  legitimation.  If,  however,  from  any 
cause,  the  child  had  acquired,  prior  to  the  legitimation,  a  citizenship  different 
from  that  of  the  mother,  the  legitimation,  while  conferring  upon  the  child  the 
citizenship  of  the  father,  does  not  carry  with  it  the  loss  of  such  acquired  citizen- 
ship. The  state  citizenship  of  the  father  is  added,  and  the  child  becomes 
possessed  of  citzenship  in  two  States.  Only  the  citizenship  based  on  illegiti- 
macy is  lost. 

3  BOB.  §§  i7i9ff. 

4  Ibid.  §  1723.     See  also  Laband,  I.  p.  152;  Cahn,  op.  cit.  p.  36;  Arndt, 
Staatsr.  p.  44. 


142  THE  GERMAN   EMPIRE 

to  make  such  declaration.1  When  the  father  is  a  citizen  of  the 
Empire,  no  matter  where  his  domicile  may  be,  the  legitima- 
tion must  take  place  in  accordance  with  German  law.2  In 
order  to  legitimation  by  declaration,  the  consent  of  the  child 
is  necessary.  If  the  child  has  not  completed  the  twenty-first 
year  of  his  life,  the  consent  of  the  mother,  or  of  the.  person 
who  stands  legally  in  loco  parentis,  must  be  obtained.3  This 
rule  holds  in  case  the  father  is  a  citizen  of  a  foreign  State, 
and  the  legitimation  take  place  under  the  laws  of  the  foreign 
State.  The  legitimation  is  not  recognized  as  valid  if  the 
consent,  required  under  the  Civil  Code  of  the  Empire,  has  not 
been  obtained.4 

The  effect  of  legitimation  is  not  retroactive.  The  child 
acquires  the  State  citizenship  of  the  father  from  the  day  of 
legitimation.  In  this  regard,  it  matters  not  whether  the  legiti- 
mation takes  place  through  marriage  or  by  declaration.  In 
the  one  case,  the  citizenship  of  the  child  becomes  that  of  the 
father  from  the  day  of  marriage,  hi  the  other,  from  the  day  of 
the  legal  declaration.5 

3.  By  Marriage.  — "  Marriage  with  a  German  invests 
the  wife  with  the  State  citizenship  of  the  husband."  6  It 

1  BOB.  §  1723,  Cl.  2.    When  the  father  is  a  citizen  of  several  States,  the 
competence  to  declare  the  child  legitimate  on  the  motion  of  the  father  belongs 
to  each  of  them.     See  Planck,  Burg.  GB.  note  2  to  §  1723  of  the  BGB. 

2  Law  introducing  the  BGB.  Art.  22,  Cl.  i.     This  holds  also  where  the 
father  is  at  the  time  a  citizen  of  no  State,  but  his  last  citizenship  was  German. 
Ibid.  Art.  29.     Planck,  Komm.  zum  Einj.  G.  zum  BGB.  Art.  22,  note  2. 

3  See  BGB.  §§  1726,  1727,  1728. 

*  Einj.  G.  zum  BGB.  Art.  22,  Cl.  2.    A  legitimation,  therefore,  obtained 
without  the  required  consent,  whatever  effect  it  may  have  in  the  land  where 
the  father  is  domiciled  and  of  which  he  is  a  citizen,  does  not,  according  to 
German  law,  effect  the  loss  of  German  citizenship  on  the  part  of  the  child, 
if  the  child  has  already  acquired  such  citizenship. 

1  Cahn,  op.  cit.  p.  32,  note  3.  Planck,  op.  cit.  note  3  to  §  1719,  BGB. 
Opposite  view,  Von  Bar,  Lehrb.  d.  Internet.  Privatr.  p.  37. 

•  Law,  §  5. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      143 

need  scarcely  be  added  that  the  marriage,  in  order  to  produce 
such  effect,  must  be  a  valid  one.  The  question  of  validity 
is  determined  by  the  laws  of  the  place  where  the  marriage 
is  contracted.1  This  effect  of  the  marriage  upon  the  citizen- 
ship of  the  wife  does  not  in  any  wise  depend  on  the  wishes 
or  will  of  either  of  the  contracting  parties,  and  therefore  can- 
not be  blocked  by  the  will  of  either  or  both  of  them.  A 
reservation  of  her  former  citizenship  by  the  wife,  upon  enter- 
ing into  the  marriage,  is  not  recognized  in  German  law.  For 
the  acquisition  of  citizenship  by  the  wife,  through  marriage, 
does  not  rest  upon  the  same  principle  as  the  acquisition  of 
citizenship  through  conferment  or  grant  on  the  part  of  the 
State,  of  which  something  will  be  said  in  the  next  paragraph. 
That  is,  the  investment  of  the  wife  with  the  citizenship  of  the 
husband  is  not  a  "judicial  act"  on  the  part  of  the  State,2 
but  rests  upon  a  principle  of  German  common  law.3 

Through  marriage  with  a  citizen  of  the  German  Empire, 
the  citizenship  of  the  husband  passes  to  the  wife  alone,  and 
not  to  her  illegitimate  children,  should  such  exist,  unless 

1  In  Germany  this  question  is  settled  in  conformity  with  the  provisions  of 
the  Law  of  6  February,  1875  (RGBl.  p.  23),  and  the  BGB.  §§  1303  ff.     With 
respect  to  marriage  contracted  between  Germans  in  foreign  countries,  see 
Law  of  4  May,  1870  (RGBl.  p.  599) ;  Law  of  17  April,  1886  (RGBl.  p.  75); 
Lawof  7  July,  1887  (RGBl.  p.  307)  ;  Law  of  15  March,  1888  (RGBl.  p.  71) ;  and 
Law  of  7  April,  1900  (RGBl.  p.  213),  §  36.   In  general,  see  Planck,  Einj.  G.  zum 
BGB.  notes  to  Art.  13.     Cahn,  op.  tit.  pp.  38  ff .,  note  to  §5,  says:   "ImAllge- 
meinen  wird  die  Verheiratung  eines  Deutschen  im  Auslande  als  gesetzmassig 
anerkannt,  wenn  sie  unter  Beriicksichtigung  der  Nationalgesetze  der  Ehe- 
schliessenden  und  in  der  durch  die  Gesetze  des  A  ufenthaUsorts  der  Eheschlies- 
senden  vorgeschriebenen  Form,  gleichviel  ob  diese  in  dem  biirgerlichen  oder 
kirchlichen  Akt  besteht,  in  giiltiger  Weise  abgeschlossen  ist."   Planck  also  de- 
clares that,  in  accord  with  Art.  13,  Cl.  i,  of  the  Einj.  G.  zum  BGB.,  it  must 
be  held  that  "Die  Ehe  nur  giiltig  ist,  wenn  sie  sowohl  nach  den  Gesetzen  des 
Staates,  dem  der  Mann  gehort,  als  nach  den  Gesetzen  des  Staates  dem  die 
Frau  gehort  giiltig  ist." 

2  Laband,  I.  p.  152. 

3  See  Motive  to  §  5  of  the  Law;  Cahn,  op.  cit.  p.  38. 


144  THE  GERMAN  EMPIRE 

these  children  be  legitimized  at  the  same  time  by  the 
contraction  of  the  marriage.1  Citizenship  acquired  through 
marriage  does  not  revert  on  the  death  of  the  husband.  A 
declaration  of  invalidity  carries  with  it,  of  course,  the  nullity 
of  all  acts  based  on  such  marriage,  hence  the  citizenship  of 
a  woman  whose  marriage  is  declared  void  is  not  changed.  A 
divorce,  on  the  contrary,  has  no  effect  on  citizenship  acquired 
through  marriage.2 

A  German  who  has  lost  his  citizenship  in  one  of  the  States 
without  acquiring  citizenship  in  another  or  in  a  foreign  State 
is  "  staatlos"  He  is  a  citizen  nowhere.  His  marriage  would 
place  his  wife  and  any  children  begotten  in  wedlock,  or 
legitimized  by  the  marriage,  in  the  same  status.  On  the  other 
hand,  a  German  who  has  acquired  citizenship  in  several 
States  transfers  such  citizenship,  by  his  marriage,  to  his  wife 
and  their  children.3 

4.  By  Grant  or  Conferment.  —  Citizenship  may  be  granted 
or  conferred  by  an  administrative  act,  performed  by  an  ad- 
ministrative authority  of  the  State,  competent  under  the  law.4 
Inasmuch  as  State  citizenship  is  not  acquired,  as  in  the  United 
States,  by  the  mere  securing  of  a  domicile,  on  the  part  of  a 
citizen  of  the  Union,  in  another  State,  it  follows  that  the 
acquiring  of  citizenship  in  one  of  the  German  States  by  a 

1  Motive  to  §  5  of  the  Law ;    Cahn,  op.   cit.  p.  42,  note  3  b ;   Arndt, 
Staatsr.  p.  55.     Citizenship  does  not  pass  to  children  by  a  former  marriage. 

2  Cahn,  op.  cit.  p.  42;  Meyer,  Staatsr.  p.  200;   Arndt,  op.  cit.  p.  55. 

s  Cahn,  op.  cit.  p.  42,  note  4,  in  which  is  also  an  interesting  discussion  of 
the  case  of  Prince  Alfred,  Duke  of  Edinburgh,  who  succeeded  to  the  throne  of 
the  Duchy  of  Coburg  and  Gotha. 

4  The  Law,  §  6,  states  that  such  conferment  takes  place  through  a 
certificate  issued  by  one  of  the  "  higher  administrative  boards."  In  general, 
therefore,  it  must  be  inferred  that  by  the  term  "  higher  administrative  board" 
is  meant  such  as  have  other  administrative  boards  subordinated  to  them, 
i.e.  boards  of  second  instance.  See  Cahn,  pp.  45  ff. ;  Laband,  I.  p.  153. 
Local  police  boards  are  not  competent,  therefore. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      145 

citizen  of  another  German  State  must  be  attended  by  some 
formal  act,  performed  by  the  State  into  whose  civic  fellowship 
he  is  to  be  received.  It  is  true  that  Art.  3  of  the  Imperial 
Constitution  declares  that  there  shall  be  a  common  denizen- 
ship  (Indigenat]  for  the  whole  Empire;  and  provides,  fur- 
ther, that  the  citizens  of  one  State  shall,  in  certain  important 
relations,  be  treated  in  every  other  State  no  less  favorably  than 
that  other  State  treats  its  own  citizens.  This  Art.  3,  however, 
does  not  break  down  the  lines  of  State  citizenship,  nor  does 
it  reverse  the  order  of  things  and  make  citizenship  in  the 
Empire,  rather  than  citizenship  in  the  State,  primary.  If, 
under  the  terms  of  Art.  3,  the  citizens  of  one  State  may 
secure  a  domicile  and  carry  on  the  activities  of  life  in  every 
other  State  on  equal  terms  with  the  citizens  of  those  States, 
yet  they  do  not  become,  by  reason  of  these  privileges,  citizens 
of  those  States  in  which  such  domicile  is  acquired,  no  matter 
how  long  such  domicile  may  be  maintained.1  The  citizen 
of  one  State  becomes  a  citizen  of  another  State  only  by 
means  of  a  dual  transaction  between  the  State,  on  the 
one  side,  and  the  individual,  on  the  other;  by  a  grant  of 
citizenship  on  the  part  of  the  State  through  its  compe- 
tent administrative  board,  and  by  the  acceptance  of  such 
grant  by  the  party  on  whom  citizenship  is  conferred.  Such 
acceptance  is  implied  in  the  application  of  the  party.2 

1  It  is  true  that  among  the  privileges  mentioned  in  Art.  3  of  the  Imperial 
Constitution,  the  "acquiring  of  State  citizenship"  is  one.     The  awkward 
construction  of  the  clause  which  includes  the  "  acquiring  of  State  citizenship" 
among  the  privileges  to  which  the  citizens  of  every  State  in  the  Empire  are 
to  be  admitted  in  every  other  State  on  the  same  conditions  as  the  citizens  of 
that  other  State,  makes  an  interpretation  difficult ;  but  it  is  certain  that  Art. 
3  was  not  intended  to,  and  does  not,  establish  the  principle  that  the  acquire- 
ment of  a  domicile  and  the  enjoyment  of  large  civil  privileges,  if  continued 
long  enough,  would  ever  confer  citizenship. 

2  See  Laband,  I.  p.  153,  citing  Seydel,  Bayr.  Staatsr.  I.  p.  275,  note  13; 
Von  Sarwey,  Wurtt.  Staatsrecht,  I.  p.  165;    Loning,  Verwaltungsr.  p.  246; 


146  THE  GERMAN  EMPIRE 

A  citizen  of  one  State  does  not  become  a  citizen  of  another 
State  against  his  will.1 

It  is  a  recognized  principle  in  public  law  that  every  State 
has  a  right  to  define  its  own  membership.  It  may,  therefore, 
refuse  a  place  in  its  civic  fellowship  to  citizens  of  another  and  a 
foreign  State,  or  it  may  permit  citizens  of  foreign  States  to 
become  a  part  of  its  citizen  body,  and  may  stipulate  the  con- 
ditions under  which  this  may  take  place.  The  grant  of 
citizenship,  therefore,  must  be  considered  in  two  aspects, 
both  of  which  are  expressly  recognized  in  German  law:  (i) 
the  conferring  of  citizenship  by  one  German  State  upon  a 
citizen  of  another  German  State,  —  a  change  of  State  citizen- 
ship, the  imperial  citizenship  remaining  unaffected;  and, 
(2)  the  conferring  of  State  citizenship  upon  a  citizen  of  a 
foreign  State,  which  carries  with  it  the  conferring  of  citizen- 
ship in  the  Empire.  The  conferment  of  citizenship  in  both 
these  cases  is  recognized  by  the  Law  of  i  June,  1870.  In  the 
first  instance  the  grant  is  termed  "reception,"  in  the  second, 
"naturalization." 

(i)  Reception. —  The  conditions  controlling  the  reception 
of  citizens  of  one  German  State  into  the  citizenship  of  another 
German  State  are  laid  down  in  §  7  of  the  Law  of  i  June, 
1870:  "A  certificate  of  reception  shall  be  granted  to  every 
member  of  another  federated  State 2  who  makes  application 
for  it  and  proves  that  he  has  settled  in  the  State  in  which 
he  makes  such  application,  provided  no  ground  exists,  which, 

Rehm,  Hirth's  Annalen,  1885,  p.  118;  Jellinek,  System,  pp.  199  ff. ;  Contrary 
opinion,  Meyer,  Staatsr.  p.  200,  note  8;  Zorn,  Staatsr.  I.  p.  357;  O.  Mayer, 
Archiv  j.  d.  6.  Recht,  III.  p.  47;  Radnitzky,  Parteiwilkur  im  offentl.  Recht, 
1888,  pp.  59  ff. ;  Sartorius,  Der  Einfluss  der  FamUienstande  auj  die  Staats- 
angehorigkeit,  1899,  p.  55;  Bornhak,  p.  251;  Anschiitz,  in  Holzendorff- 
Kohler,  II.  p.  530. 

1  Whether  citizenship  can  be  claimed  against  the  will  of  the  State  under 
Art.  3  of  the  Imperial  Constitution  is  a  wholly  different  question. 

*  This  also  includes  Alsace-Lorraine.     See  Cahn,  op.  cit.  p.  53,  note  5. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      147 

under  §§  2-5  of  the  Law  of  Free  Migration,  i  November, 
1867  (RGBL  p.  355),  justifies  a  refusal  to  admit  the  new- 
comer, or  to  permit  a  continuance  of  residence." 

In  this  matter  of  granting  a  certificate  of  citizenship  to  a 
citizen  of  another  State  of  the  Empire,  the  State  to  which 
such  application  is  made  has  no  discretion,  provided  certain 
conditions  laid  down  by  imperial  law  are  met.  The  certificate 
must  issue.1  It  is  a  general  principle  of  public  law  that  no 
person,  being  a  citizen  of  one  State,  has  a  right  or  claim  to 
naturalization  in  another  State.  Such  a  claim  would  con- 
flict with  the  idea  of  political  independence,  in  conformity 
with  which  every  State  has  free  discretion  with  respect  to 
whom  it  will  receive  into  its  citizen  body.  Leaving  out  of 
discussion  the  question  whether  Art.  3  of  the  Constitution, 
in  including  the  "acquiring  of  State  citizenship"  among  the 
privileges  incident  upon  the  "common  Indigenat,"  has  set 
up  for  every  citizen  of  the  Empire  an  immediate  right  to 
reception  in  any  and  every  State  of  the  Empire  to  which  he 
may  apply,  it  must  be  recognized,  as  the  Motive  to  the  Law 
suggests,2  that,  in  any  case,  it  would  be  contrary  to  the  whole 
tendency  of  the  Constitution,  in  providing  for  the  uniform 
regulation  of  the  matter  of  denizenship  (Indigenat),  to  treat 
the  members  of  one  of  the  federated  States  on  the  same  foot- 
ing with  the  citizens  of  foreign  States,  so  far  as  the  acquiring 
of  citizenship  is  concerned.  This  consideration  is  back  of 
the  provision  of  §  7  of  the  Law,  which  declares  that  recep- 
tion into  citizenship  shall  not  be  denied  by  one  State  of  the 
Empire  to  citizens  of  another  State  of  the  Empire,  provided 
certain  conditions  are  met.  This  law  is  certainly  a  restriction 
of  the  independent  right  of  each  State  in  the  Union  to  exer- 
cise its  choice  as  to  whom  it  will  receive  into  its  body  politic 

1  The  certificate  must  issue  free  of  charge.    See  Law,  §  24. 

2  See  Cahn,  op.  cit.  p.  50. 


148  THE  GERMAN   EMPIRE 

and  to  determine  its  own  citizenship;  but  it  is  a  restriction 
upon  each  State  in  the  interests  of  all  the  States,  and  is  made 
necessary  by  the  very  nature  of  the  federation.1 

The  conditions  under  which  a  citizen  of  one  State  in  the 
Empire  may  claim  reception  into  the  citizenship  of  another, 
are  as  follows :  — 

(1)  He  must  furnish  proof  of  his  citizenship  in  one  of  the 
States  of  the  Empire,  by  producing  the  proper  certificate 
(Staatsangehdrigkeitsanweise),  made  out  in  his  name.     It  is 
not  at  all  necessary  that  he  obtain  a  release  or  dismissal  from 
the  citizenship  of  his  home  State,  for,  under  German  law,  the 
acquiring  of  citizenship  in  the  new  State  does  not  work 
the  dissolution  of  the  citizenship  hitherto  held.    A  German 
may  be  a  citizen  of  several  States,  in  fact,  of  all  the  German 
States,  at  one  and  the  same  time. 

(2)  If  the  applicant  is  under  parental  control,  or  under  a 
guardian,  in  other  words,  if  he  is  legally  in  a  state  of  depend- 
ence, the  consent  of  his  legal  representative  must  be  proven.2 

(3)  Reception  follows  only  on  the  application  of  the  party.8 
In  the  debate  over  §  7  of  the  Law  of  i  June,  1870,  it  was 
moved  that  a  citizen  of  any  State  in  the  Empire  might  transfer 
his  citizenship  from  one  State  to  another  by  mere  removal 
to  that  State.     This  motion  was  rejected.4    It  was  held  that 
a  direct  expression  of  will  on  the  part  of  the  citizen  should  be 
required,  as  to  whether  he  desired  to  become  a  citizen  of  the 
State  in  which  he  had  secured  a  domicile.     Moreover,  such 
an  expression  of  will  was  made  necessary  by  §  12-  of  the 
Law,  which  provided  explicitly  that  residence  (Wohnsitz) 

1  See  the  speech  of  the  Federal  Commissioner  in  opening  the  debate  on 
the  granting  of  citizenship  by  reception,  Sten.  Ber.  1870,  Bd.  I.  p.  82. 

1  Law  of  Free  Migration,  §  2.     See  Einj.  G.  zum  BGB.  Art.  37. 

8  This  application  need  not  be  made  to  one  of  the  "  higher  administrative 
boards,"  but  may  be  presented  to  one  of  the  subordinate  boards. 

4  Motion  of  Delegate  Von  Bockum,  Sten.  Ber.  1870,  Anl.  IV.  Nr.  251. 


CITIZENSHIP   UNDER  THE   GERMAN   CONSTITUTION      149 

within  a  State  or  within  the  Imperial  Territory  did  not,  of 
itself,  establish  citizenship  therein. 

(4)  The  applicant  must  prove  that  he  has  acquired  an 
abode  in  the  State  into  whose  citizenship  he  wishes  to  be 
received.1  By  "abode"  is  meant  the  actual  possession  of  a 
dwelling  or  lodging  in  the  Commune,  coupled  with  the  animus 
manendi.  No  restriction  is  imposed  beyond  those  contained 
in  the  Law  of  Free  Migration.  In  other  words,  the  principle 
obtains,  that  by  the  conditions  under  which  a  residence  is 
permitted,  a  claim  to  reception  is  established.  The  fact, 
therefore,  that  the  applicant  has  provided  himself  with  a 
dwelling  or  lodgings  creates  the  presumption  of  a  right  of 
residence  and  consequently  of  a  right  to  reception,  and  must, 
for  that  reason,  be  proven.  Says  Laband : 2  "Under  'abode,' 
according  to  the  fixed  terminology  of  imperial  legislation,  is  to 
be  understood  the  establishment  of  a  domicile,  in  distinction 
from  a  mere  residence.  Just  as  it  is  beyond  doubt  that  a 
domicile,  once  established,  can  continue  in  spite  of  a  change 
of  residence,  and  that  domicile  and  place  of  residence  may, 
therefore,  be  distinct  from  one  another;  on  the  other  hand, 
it  is  equally  certain  that  the  establishment  of  a  new  domicile 
cannot  take  place  without  residence,  and  that  he  who  has  no 
right  to  reside  in  a  locality,  whose  residence  would  not  be 
tolerated  there,  cannot,  therefore,  take  up  his  abode  in  that 
place.  Hence,  so  far  as  a  State  is  empowered  to  deny  to  the 

1  Law,  §  7.  The  acquiring  of  a  domicile  is  not  a  sine  qua  non  for  the 
granting  of  citizenship.  It  is  a  condition  essential  to  the  grounding  of  a 
claim  to  reception.  It  is  not,  therefore,  a  restriction  on  the  power  of  the 
State,  but  on  the  right  of  the  individual.  In  other  words,  where  domicile 
is  not  acquired,  the  State  is  not  bound  to  receive  the  applicant,  but  never- 
theless has  the  right  to  do  so.  See  Meyer,  Staatsr.  p.  202 ;  Laband,  I.  p.  164, 
note  4;  Cahn,  op.  cit.  p.  55;  Seydel,  in  Hirth's  Annalen,  1883,  pp.  585  ff. ; 
Bayr.  Staaisr.  I.  pp.  277-278;  Zorn,  Staatsr.  I.  p.  266;  Von  Sanvey,  I.  p.  162. 

3  Laband,  I.  p.  155. 


I5O  THE  GERMAN  EMPIRE 

members  of  another  State  a  residence  within  its  territory, 
to  that  extent  can  it  refuse  them  an  abode  there,  and  thus 
block  the  entrance  to  the  presumption  on  which  the  law 
grounds  the  right  to  grant  of  citizenship  in  that  State." 

The  grounds  on  which  one  State  of  the  Empire  may  refuse 
a  residence  to  citizens  of  another  State  are  set  forth  in 
§  25  of  the  Law  of  Free  Migration,  and  are  as  follows :  — 

(a)  If  the  applicant  is  legally  dependent,  and  has  not 
obtained  the  consent  of  his  legal  representative.1 

(6)  If  the  applicant  has  been  subjected  to  police  restric- 
tion in  the  matter  of  residence,  or  has  been  convicted  of 
repeated  begging  or  of  repeated  vagrancy.2 

(c)  If  it  is  proven  that  the  applicant  does  not  possess  suffi- 
cient capacity  to  provide  the  necessary  means  of  living  for 
himself  and  for  those  dependent  upon  him  who  are  incapable 
of  labor,  or  if  he  cannot  meet  such  expenses  out  of  his  own 
property,  and  his  relatives  will  not  pledge  themselves  for  his 
support.3 

(d)  If,  after  the  arrival  of  a  newcomer,  and  before  he  has 
already  gained  such  residence  as  entitles  him  to  public  support 
at  the  hands  of  the  Commune,  the  necessity  for  such  public 
support  becomes  manifest,  and  it  can  be  proven  that  support 
has  become  necessary  on  other  grounds  than  a  temporary 
incapacity  for  labor.     In  such  case  a  continuation  of  such 
residence  may  be  denied.4 

These  grounds  may  be  set  up  by  a  State  as  a  defence  against 
the  claim  of  a  citizen  from  another  State  to  reception  into 
its  civic  body.  They  do  not,  however,  obligate  the  State  to 
refuse  the  application.  The  duty  of  the  State  is  limited,  not 
the  right.  The  State  may  lighten  the  conditions  under  which 
it  will  receive  citizens  from  other  States  of  the  Empire,  but 

1  Law  of  Free  Migration,  §2.  2  Ibid.  §  3.  *  Ibid.  §  4. 

4  Ibid.  §  5.     Compare  Cahn,  op.  tit.  pp.  57-67. 


CITIZENSHIP   UNDER  THE  GERMAN   CONSTITUTION      151 

it  cannot  lay  upon  them  added  burdens,  unknown  to  the 
kw.1 

Reception  goes  into  effect  at  the  moment  when  the  cer- 
tificate has  been  placed  in  the  hands  of  the  applicant  or  of 
his  legal  representative.2  The  citizenship  acquired  by  recep- 
tion extends  also  to  the  wife  of  the  recipient  and  to  his  minor 
children  still  under  his  care  and  control. 3  Daughters  who  are 
married  or  who  have  been  married  are  excepted. 

(2)  Naturalization.  —  The  conditions  which  foreigners 
must  meet  before  they  can  be  granted  a  certificate  of  citizen- 
ship by  naturalization  are  laid  down  in  §  8,  of  the  Law  of 
i  June,  1870.  This  section  reads  as  follows :  — 

"A  certificate  of  naturalization  may  be  granted  to  for- 
eigners only  when  they 

"  i)  are  capable  of  disposing  of  their  property  under  the 
laws  of  their  home  land  (Dis positions fdhig),  unless  the  lack 
of  such  capacity  be  supplemented  by  the  consent  of  the  father, 
guardian,  or  the  curator  of  the  person  of  the  party  to  be  natu- 
ralized ; 

"2)  have  led  an  unblemished  life; 

"3)  find  a  dwelling  or  lodging  of  their  own  in  the  place 
where  they  propose  to  settle ; 

1  With  respect  to  settlement  of  controversies  over  the  refusal  of  a  State  to 
receive,  see  Meyer,  Verwaltungsr.  I.  p.  154,  note  15;  also  Laband,  II.  pp. 
190  ff. 

2  Law,  §  10.     That  is,  the  certificate  must  not  only  be  issued,  but  be 
actually  placed  in  the  hands  of  the  party.     See  Cahn,  op.  cit.  p.  106,  note  2 ; 
Laband,  I.  p.  153,  note  4. 

s  Law,  §  ii.  This  rule,  however,  is  not  rigid.  The  law  means  that 
"the  grant  of  citizenship  extends  to  the  family,  so  jar  as  an  exception  is  not 
therein  made."  By  agreement,  upon  whatever  ground,  the  citizenship  ac- 
quired by  the  husband  and  father  may  not  extend  to  all  who  are  legally  sub- 
ject to  his  authority.  The  initiative  in  such  case  may  come  from  the  father 
or  from  the  administrative  board.  Cahn,  op.  cit.  p.  108,  note  3 ;  Laband, 
I.  p.  154- 


152  THE  GERMAN   EMPIRE 

"4)  are  in  a  position  to  sustain  themselves  and  those 
belonging  to  them  in  the  place  where  they  purpose  to  settle, 
under  the  conditions  existing  there. 

"Before  the  granting  of  a  certificate  of  naturalization,  the 
Higher  Administrative  Board  must  hear  the  Commune,  as 
well  as  the  Poor  Association  of  the  place  where  the  party  to 
be  naturalized  proposes  to  locate,  with  reference  to  the 
requirements  2),  3),  and  4),  mentioned  above,  and  must  le- 
ceive  their  explanation  and  declaration." 

These  conditions,  the  Motive  to  the  Law  states,  are  limited 
to  the  minimal  requirement  necessary  to  protect  the  State 
and  the  Commune  from  being  flooded  with  dependent, 
immoral,  or  industrially  incompetent  persons.  There  is  no 
intention  whatever  of  founding  any  right  to  naturalization  on 
the  part  of  any  foreigner,  nor,  by  setting  forth  the  conditions 
under  which  naturalization  may  be  granted,  is  there  any  idea 
of  establishing  a  basis  for  a  claim  to  the  acquirement  01 
citizenship  in  a  State  of  the  Empire.  While  it  is  true  that 
no  State  is  at  liberty  to  waive  any  one  of  these  conditions  and 
to  admit  foreigners  into  the  citizenship  of  the  Empire  upon  a 
requirement  less  than  those  fixed  in  the  law,  on  the  other 
hand,  no  State  is  compelled  to  receive  a  foreigner  into  its 
civil  fellowship,  even  when  all  the  conditions  imposed  by  the 
law  are  met  by  him.1  The  wording  of  the  first  clause  of 
§  8,  "a  certificate  of  naturalization  may  be  granted  to  for- 
eigners only,"  etc.,  gives  to  the  law  the  form  of  a  prohibition 
upon  the  States,  not  the  form  of  a  command. 

1  See  Cahn,  op.  tit.  p.  70.  "The  States  are  not  deprived  of  the  right  to 
render  the  conditions  of  naturalization  more  severe,  by  means  of  special 
State  laws  or  administrative  regulations,  or  to  reject  the  application  of  for- 
eigners without  assigning  reasons  for  so  doing,  since  no  foreigner  has  a  right 
to  naturalization  and  no  State  is  obliged  to  grant  naturalization."  Laband, 
I.  p.  156  and  note  3.  See  Cahn,  op.  cit.  pp.  475,  476,  for  a  table  of  stamp  fees 
and  taxes  for  the  granting  of  naturalization  in  the  various  German  States. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION     153 

It  rests  with  the  applicant  to  prove  that  in  his  case  all 
the  conditions  required  by  law  as  indispensable  to  natural- 
ization are  fully  met.  But,  as  noted  in  the  final  clause  of 
§  8  of  the  Law,  before  the  Board  renders  its  decision  upon 
the  application,  it  must  hear  the  declaration  of  the  Commune 
and  the  Poor  Association  as  to  the  moral  character  of  the 
applicant,  as  to  his  having  secured  a  dwelling  in  the  place 
where  he  proposes  to  locate,  and  as  to  his  ability  to  support 
himself  and  family  in  the  conditions  of  industry  that  exist  in 
the  place  of  his  intended  domicile.1  The  certificate  of  natu- 
ralization goes  into  effect,  with  all  the  accompanying  rights 
and  obligations  of  citizenship,  from  the  moment  in  which  it 
is  placed  in  the  hands  of  the  applicant.2 

(3)  Installation.  —  A  third  mode  of  acquiring  citizenship  is 
provided  by  law:  the  acquiring  of  citizenship  through  in- 
stallation. Strictly  speaking,  this  is  a  substitute  for  recep- 
tion and  naturalization.  It  may  properly  be  called  a  tacit 
reception,  or  naturalization,3  i.e.  reception  or  naturalization 
without  the  granting  of  a  certificate  in  regular  form.  Section 
9  of  the  Law  of  i  June,  1870,  reads :  — 

"A  commission  issued  or  confirmed  by  the  government,  or 
by  one  of  the  central,  or  higher  administrative  boards  of  a 
State,  to  a  foreigner,  or  citizen  of  another  federated  State, 
who  has  entered  into  the  immediate  or  mediate  service  of  the 
State  or  into  the  service  of  the  Church,  a  school,  or  Commune, 
takes  the  place  of  a  certificate  of  naturalization  or  of  recep- 
tion, so  far  as  a  reservation  to  the  contrary  is  not  expressed 
in  the  commission.4 

1  See,  in  this  connection,  the  remark  of  Cahn,  op.  cit.  p.  82,  note  14. 

2  Law,  §  10. 

3  Laband,  I.  p.  159;  Arndt,  Staatsr.  p.  58. 

*  This  reservation  may  be  made  by  the  appointing  board  or  by  the  ap- 
pointee. It  may  be  complete,  including  the  whole  family  of  the  appointee, 
or  partial,  including  certain  members  only.  See  Cahn,  op.  cit.  p.  97,  note  18. 


154  THE  GERMAN  EMPIRE 

"  If  a  foreigner  is  appointed  to  the  service  of  the  Empire,  he 
acquires  the  citizenship  of  the  State  in  which  he  has  his 
service  domicile." l 

The  Law  of  i  June,  1870,  does  not  cover  the  case  of  a 
foreigner,  domiciled  abroad  and  yet  appointed  to  service 
of  the  Empire.  In  order  to  meet  such  a  case,  a  law  was 
passed  20  December,  1875,*  which  runs:  — 

"A  certificate  of  naturalization  must  not  be  refused,  by 
that  federated  State  to  which  they  may  apply  for  citizenship, 
to  foreigners  who  are  appointed  to  the  imperial  service,  draw 
a  salary  from  the  imperial  treasury,  and  have  their  domicile 
of  service  in  a  foreign  land." s 

The  conferment  of  citizenship,  by  whatever  method,  ex- 
tends at  the  same  time  to  the  wife  and  to  the  minor  children 
still  under  parental  control,4  so  far  as  an  exception  is  not  made 
expressly  in  the  certificate.5 

1  This  second  clause  was  added  as  an  amendment  to  the  original  draft. 
It  fills  a  gap  made  by  the  omission  of  a  provision  for  the  case  of  a  foreigner 
domiciled  in  Germany  and  appointed  to  the  imperial  service.  See  also 
Laband,  I.  p.  159,  note  2. 

J  RGBl.  p.  324. 

8  See  Cahn,  op.  cit.  p.  103,  note  b.  This  does  not  include  the  consules 
electi,  or  Wahlkonsuln.  It  will  be  noted  that  the  mere  act  of  appointment 
does  not  carry  with  it  the  conferring  of  citizenship,  nor  does  it  lay  upon  the 
appointee  any  obligation  to  become  a  citizen  of  Germany.  It  does,  however, 
bind  the  State  to  grant  citizenship  if  applied  for.  For  a  discussion  of  the 
reasons  which  prompted  the  drafting  of  this  law,  see  Sten.  Ber.  Anl.  3, 
1875-1876,  Aktenstiick,  Nr.  73,  p.  279. 

4  Illegitimate  minor  children,  whose  mother  thus  becomes  naturalized 
as  a  German,  do  not  by  that  act  alone  acquire  the  same  citizenship,  for  the 
tacit  expansion  of  citizenship  applies  only  to  the  case  of  legitimate  minors. 
If  the  mother  would  naturalize  her  illegitimate  children,  she  must  petition 
for  a  special  naturalization  under  the  conditions  provided  for  in  §  8  of  the 
Law  of  i  June,  1870.  Cahn,  op.  cit.  p.  109,  note  5. 

1  The  exception  may  be  moved  by  the  party  or  by  the  administrative 
board.  Such  a  reservation,  however,  must  be  made  by  the  applicant  before 
the  appointment  to  office  is  perfected,  and  by  the  Board  before  the  granting 
of  citizenship.  Cahn,  op.  cit.  p.  108,  note  3. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      155 

II.  The  Loss  of  Citizenship  in  the  German  Empire.  — 
Citizenship  in  the  German  Empire  may  be  lost  in  any  one  of 
several  ways  laid  down  in  the  Law  of  i  June,  1870. 

1.  By    Legitimation.1  —  As    already    stated,    illegitimate 
children  acquire  at  birth  the  citizenship,  not  of  the  father, 
but  of  the  mother.     Where  legitimation  is  effected  in  confor- 
mity with  the  provisions  of  law,  and  the  father  is  a   citizen 
of  a  State  other  than  that  to  which  the    mother  belongs, 
the  legitimized  children  lose    the   citizenship    acquired  by 
birth  and  become  vested  with  the  citizenship  of  the  father. 
Should  the  father  be  "staatlos"  at  the  time  of  legitimation, 
the  legitimized  children  will  also  become  "staatlos."     If  the 
mother  of  illegitimate  children  marry  a  foreigner,  the  chil- 
dren do  not,  ipso  facto,  lose  the  citizenship  acquired  by  birth, 
although  the  mother  becomes  a  foreign  citizen  through  the 
marriage,    unless,    by   the   marriage,   the    children   become 
legitimized.2 

2.  By  Marriage.  —  Upon  marriage  with  a  citizen  of  another 
State,  or  with  a  citizen  of  a  foreign  land,  a  German  woman 
loses  her  citizenship.3    No  certificate  of  dismissal  is  needed 
to  attest  this  fact,  though  such  a  certificate  may  be  granted 
should  the  country  to  which  the  husband  belongs  require  it.4 

3.  By  Dismissal.  —  A  German  citizen  may  be  released 
from  citizenship  in  a  State  or  in  the  Empire,  through  an  act 
analogous  to  that  by  which  a  citizen  of  a  foreign  land  acquires 
citizenship  in  the  Empire,  or  a  citizen  of  one  of  the  German 

1  Law  of  i  June,  1870,  §  13,  Nr.  4. 

2  Cahn,  op.  cit.  p.  114,  note  6. 
8  Law,  §  13,  Nr.  5. 

4  Cahn,  op.  cit.  p.  119,  note  9.  In  the  circular  of  16  February,  1872  (Minis- 
terialbl.  j.  d.  innere  Verw.  p.  166),  instructions  were  issued  to  the  officials  to 
the  effect  that  in  all  cases  where  a  German  woman  married  a  foreigner,  they 
should  inform  the  bride  of  the  effect  of  such  marriage  upon  her  status  as  a 
citizen. 


156  THE  GERMAN   EMPIRE 

States  acquires  citizenship  in  another.  The  juristic  nature 
of  the  act  is  the  same  in  both  cases. 

Dismissal  from  citizenship  may  be  granted  upon  the  request 
of  the  party,  and  takes  the  form  of  a  certificate  issued  by  one 
of  the  higher  administrative  boards  of  the  home  State.1 
The  person  making  application  for  dismissal  must  be  legally 
competent,  otherwise  the  request  must  be  made  by  his  legal 
representative,  who  must  first  obtain  the  consent  of  the 
Court  of  Guardianship.  This  consent  is  not  necessary,  how- 
ever, where  the  father  or  mother  requests  dismissal,  includ- 
ing in  the  request  the  dismissal  of  a  child  still  under  parental 
control.  Where  a  mother  seeks  dismissal  for  a  child  on  the 
ground  of  parental  authority,  and  an  adviser  (Beistand), 
whose  competence  extends  to  the  case  of  the  person  of  the 
child,  has  been  appointed  for  her,  she  must  obtain  the  con- 
sent of  the  Beistand  to  the  making  of  the  application.2 

Two  cases  must  be  distinguished  in  discussing  the  subject 
of  dismissal  from  citizenship  in  a  German  State :  (i)  the  case 
where  a  party  breaks  his  civic  relation  with  one  German  State 
in  order  to  migrate  into  another  German  State,  citizenship  in 
the  Empire  thus  remaining  wholly  unaffected;  and  (2)  the 
case  where  a  party  seeks  dismissal  from  the  citizenship  of  a 
German  State  in  order  to  emigrate  to  a  foreign  land,  the  re- 
lease from  State  citizenship  carrying  with  it  the  release  from 
citizenship  in  the  Empire  as  well.  As  to  the  first  case,  the 
law  provides  that  dismissal  shall  be  granted  to  every  citizen 
who  proves  that  he  has  acquired  citizenship  in  another  State 
of  the  Empire.3  Such  a  dismissal  is  not  discretionary  with  the 
board  to  which  application  is  made.  It  must  be  granted  upon 

'Law,  §§  13,  i;  14;  18,  Cl.  i. 

1  See  EG.  zum  BGB.  Art.  41,  II.;  Law  of  i  June,  1870,  §  14.     Com- 
pare also  BGB.  §§  1847  and  1827. 
1  Law,  §  15,  Cl.  i. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION       157 

the  request  of  the  party,  where  the  request  is  accompanied 
by  a  certificate  of  citizenship  in  another  German  State.1 
Nor  can  the  board  hinder  the  making  of  an  application  by 
imposing  a  fee  upon  the  issuance  of  the  certificate, 2  or  by 
making  the  granting  of  the  dismissal  conditional  upon  the 
fulfilment  of  the  military  obligations  in  the  home  State,  since, 
under  the  "Law  Respecting  the  Obligation  to  Military  Ser- 
vice," of  9  November,  1867  (BGBL  p.  131),  §  17,  every 
German  is  summoned  to  fulfil  his  military  service  in  that 
State  in  which  he  has  his  domicile,  or  to  which  he  may  have 
removed  before  the  final  decision  with  respect  to  his  active 
service  is  made,  irrespective  of  whether  that  State  is  his  home 
State  or  not. 
So  far  as  the  second  case  is  concerned,  i.e.  where  the  appli- 

1  In  a  note  to  p.  161,  Vol.  I.  Laband  calls  attention  to  a  curious  state  of 
affairs  arising  under  the  German  theory  that  the  acquirement  of  new  citizen- 
ship, whether  in  or  out  of  the  Empire,  does  not,  ipso  facto,  effect  a  release  from 
the  former  citizenship.     He  says:    "If  a  party  does  not  make  this  request, 
—  i.e.  for  dismissal,  —  he  remains  a  citizen  of  his  home  State.     A  German, 
therefore,  may  belong  to  several,  indeed,  to  all  of  the  States  in  the  Empire 
at  one  and  the  same  time.     If,  for  example,  a  person  is  appointed  in  several 
States,  one  after  the  other,  to  service  in  the  State  or  Church  or  school  or 
Commune,  he  acquires  a  cumulative  citizenship  in  all  these  States,  in  ad- 
dition to  the  citizenship  of  the  State  in  which  he  was  born,  and  he  hands 
down  these  citizenships  to  his  descendants  ud  infinitum.     The  same  process 
may  repeat  itself  in  the  case  of  his  sons  and  grandsons,  and  State  citizenships 
may  accrue  in  this  way  to  persons  who  have  no  suspicion  of  their  existence. 
These  latent  citizenships,  as  a  rule,  are  without  visible  effect,  but  they  con- 
tinue, and  when  a  person,  possessing  several  citizenships  without  knowing 
it,  obtains  a  dismissal  from  that  State  in  which  he  is  domiciled  and  to  whose 
citizen  body  alone  he  is  conscious  of  belonging,  such  a  dismissal  does  not 
annul  his  citizenship  in  the  Empire.     This  fact  may  lead  to  very  peculiar 
results,  especially  in  matters  of  criminal  law.     So,  too,  the  authorities  of 
the  foreign  State  granting  him  naturalization  on  the  strength  of  his  certificate 
of  dismissal  would  be  led  into  the  wrong  conclusion  that  he  had  been  freed 
from  his  German  citizenship,  when,  in  fact,  it  persists  without  the  knowledge 
and  against  the  will  of  all  parties." 

2  Law,  §  24,  Cl.  i. 


158  THE  GERMAN   EMPIRE 

cation  is  not  accompanied  by  a  certificate  of  citizenship  in 
another  German  State,  but  is  made  for  the  purpose  of  emigra- 
tion rather  than  migration,  the  Board,  under  the  Law  of  i 
June,  1870,  §  15,  may  not  issue  a  certificate  of  dismissal  to 
three  specified  classes  of  persons: 

(a)  Persons  between  the  ages  of  seventeen  and  twenty-five 
and  liable  to  military  service,  unless  they  present  a  statement 
from  the  proper  military  authority  of  the  Circle,  to  the  effect 
that  the  application  for  dismissal  is  not  made  with  a  view 
merely  to  avoid  the  obligation  to  military  service  in  the 
standing  army  or  in  the  navy. 

(&)  Military  persons,  belonging  to  the  standing  army  or 
to  the  fleet;  officers  on  leave  of  absence,  and  officials  not 
released  from  service. 

(c)  Persons  belonging  to  the  reserves  of  the  standing  army 
and  to  the  Landwehr,  or  to  the  naval  reserves  and  to  the 
Seewehr,  not  appointed  as  officers,  after  they  have  been 
called  to  active  service.1 

Where,  however,  the  above  restrictions  do  not  apply,  a 
request  for  dismissal,  in  time  of  peace,  may  not  be  refused,2 
nor  may  the  State  impose  restrictions  not  found  in  the  im- 
perial law.3  In  time  of  war,  or  of  threatened  hostilities,  the 
Emperor  is  authorized  to  issue  special  regulations  in  the 
form  of  ordinances.4 

A  dismissal  from  citizenship  takes  effect  at  that  moment 

1  See  also  Military  Law  of  2  May,  1874  (RGBl.  p.  45),  §  60;  6  May, 
1880  (RGBl.  p.  103),  Art.  i.  See  also  Cahn,  op.  cit.  pp.  182  ff.  As  to.a  prohi- 
bition of  the  transportation  abroad  of  persons  liable  to  military  service,  see 
Law  respecting  Emigration,  9  July,  1897  (RGBl.  p.  463),  §§  23,  24, 40,  41,  43. 

*  Law,  §  17.     Refusal  may  not  be  made  on  the  ground  that  back  taxes 
remain  unpaid.    Decision  of  Oberverwaltungsgericht ,  1 4  November,  1 88  7,  Ent- 
scheidungen,  Bd.  XV.  p.  405. 

3  §  24,  Cl.  2,  of  the  law  permits  the  imposing  of  a  stamp  due  and  an 
issuance  fee  of  not  more  than  3  marks  (ein  Thaler). 

*  Law,  §  17. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      159 

in  which  the  certificate  is  placed  in  the  hands  of  the  applicant. 
If,  however,  the  person  to  whom  the  certificate  is  issued  does 
not  remove  his  domicile  from  the  territory  of  the  Empire,  or 
acquire  citizenship  in  another  State  of  the  Union,  within  six 
months  from  the  day  on  which  the  certificate  is  delivered  into 
his  hands,  the  dismissal  becomes  inoperative.1  No  special 
declaration  to  that  effect  is  necessary.  The  dismissal  becomes 
void  of  itself,  and  the  person  to  whom  it  was  issued  retains 
the  status  he  would  have  had  if  no  dismissal  had  ever  been 
granted.  In  other  words,  the  citizenship  of  the  person  re- 
vives, and  he  is  liable  for  the  subsequent  fulfilment  of  all 
the  civic  obligations  which  have  been  left  unperformed  during 
the  period  of  six  months.2 

The  dismissal  affects  also  the  wife  and  minor  children  of 
the  applicant  unless  exceptions  are  made  in  ^the  certificate 
itself.  This  effect  of  a  dismissal  does  not  extend  to  the  daugh- 
ters who  are  or  have  been  married,  nor  to  children  under  the 
parental  authority  of  the  mother,  if,  under  §  14  a,  Cl.  2, 
of  the  law,  noted  above,  the  mother  must  obtain  consent  of 
the  Beistand,  or  legal  "adviser,"  in  order  to  make  application 
for  a  certificate  of  dismissal.3 

4.  By  a  Decision  0}  the  Authorities.  —  Germans  may  be 
deprived  of  their  citizenship,  by  an  act  of  their  home  govern- 
ment, in  two  special  cases,  (i)  "Germans  who  reside  in  a 
foreign  country  may  be  declared  to  have  lost  their  citizenship, 
when,  in  case  of  war  or  of  threatened  hostilities,  they  refuse 
to  obey,  within  a  specified  time,  a  call  to  return,  issued  by 
the  Emperor  for  the  whole  federal  territory."  *  The  loss  of 

1  Law,  |  1 8. 

2  See  Seydel,  Hirth's  Annalen,    1876,   p.    148;    Cahn,  op.  cit.  p.  138; 
Laband,  I.  p.  160,  note  5;  Arndt,  Staatsr.  p.  63,  note  i. 

8  Law,  §  19,  with  the  revised  wording  in  conformity  with  Art.  41,  III. 
of  the  EG.  zum  BOB. 

4  Law,  §  20.    The  call,  that  is,  is  a  general  one,  affecting  the  citizens 


l6o  THE  GERMAN   EMPIRE 

citizenship  in  such  case  partakes  of  the  character  of  a  penalty 
for  violation  of  the  duty  of  a  citizen  to  be  loyal  to  his  State. 
Whether  such  a  declaration  shall  issue  lies  within  the  dis- 
cretion of  the  central  board  of  the  home  State.  The  issuance 
is  not  compulsory.  No  authority  other  than  the  central  board 
of  his  home  State  is  competent  to  deprive  a  recalcitrant  citizen 
of  his  citizenship.1  (2)  "  Germans  who,  without  the  permis- 
sion of  their  government,  enter  the  service  of  a  foreign  State, 
may  be  declared  deprived  of  their  citizenship,  if  they  do  not 
obey,  within  a  specified  time,  an  express  request  to  withdraw 
from  such  foreign  service."2  In  this  case,  also,  the  declaration 
can  be  made  only  by  the  central  board  of  the  home  State,  and 
the  issuance  of  it  lies  wholly  within  the  discretion  of  the  board. 
A  question  may  be  raised  at  this  point  as  to  the  effect  of  such 
a  declaration  upon  the  status  of  a  person  possessed  of  citizen- 
ship in  more  than  one  State  of  the  Empire.  Does  a  declara- 
tion by  the  central  board  of  one  State  effect  the  loss  of  citizen- 
ship in  all  the  other  States,  or  does  it  affect  the  relation  of  the 
person  concerned  to  his  home  State  alone?  Three  possible 
answers  may  be  given :  that  the  decree  of  the  central  board 
of  the  one  State  does  work  the  loss  of  citizenship  in  all  the 
others  —  the  view  of  Laband,8  and  Zorn ; 4  that  the  decree 

of  the  whole  Empire,  not  a  special  one  addressed  to  individuals  or  to  the 
citizens  of  a  single  State  who  may  be  resident  in  a  foreign  land.  See,  in  this 
connection,  Laband,  I.  p.  135. 

1  A  difference  of  opinion  seems  to  exist  among  German  jurists  as  to  whether 
in  such  a  case  of  penal  deprivation,  the  loss  of  citizenship  extends  to  the  wife 
and  minor  children.  The  affirmative  view  is  held  by  Cahn,  op.  cit.  p.  143, 
note  2;  Seydel,  Hirth's  Annalen,  1876,  p.  151.  The  negative  side  is  sup- 
ported by  Zorn,  Staatsr.  I.  pp.  367  ff. ;  Von  Sarwey,  Wiirtt.  Staatsr.  I.  p.  170, 
note  5;  Meyer,  Staatsr.  p.  209;  and  Arndt,  Staatsr.  p.  64. 

s  Law,  §  22.  This  section  does  not  apply  to  citizens  engaged  in  such 
service  with  the  permission  of  their  government,  Law,  §  23. 

3  Laband,  I.  p.  167. 

4  Zorn,  Staatsr.  I.  p.  368.    See  also  Von  Stengel,  Worterb.  p.  343. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      l6l 

does  not  effect  the  loss  of  citizenship  in  any  State  but  the  one 
issuing  the  declaration  —  the  view  of  Meyer,1  Seydel,2  and 
Arndt ; 3  or,  finally,  that  a  distinction  must  be  made  between 
§  20  of  the  law,  the  section  imposing  the  loss  of  citizenship 
as  a  penalty  for  disobeying  a  command  to  return  in  case  of 
war  or  threatened  hostilities,  where  the  declaration  must  be 
regarded  as  involving  the  loss  of  citizenship  in  all  the  States, 
and  §  22,  the  section  imposing  loss  of  citizenship  as  a 
penalty  for  refusal  to  withdraw  from  the  service  of  a  foreign 
State,  where  the  declaration  must  be  held  to  effect  a  loss  of 
citizenship  only  in  that  State  whose  central  board  issues  the 
decree.  This  is  the  view  of  Cahn.4  The  correct  answer  to 
the  question  raised  would  seem  to  be  the  first,  and  for  the  fol- 
lowing reasons:  In  the  first  place,  so  far  as  §  20  is  con- 
cerned, the  loss  of  citizenship  is  imposed  as  a  penalty  for  dis- 
loyalty, manifested  in  the  form  of  disobedience  of  a  command 
of  the  Emperor  in  his  capacity  as  Bundespraesidium,  or 
President  of  the  Federation.  This  disloyalty  is  not  directed 
against  the  State,  but  against  the  Empire.  "A  state  of  war 
and  the  danger  of  war  threaten  the  Empire  as  a  whole.  The 
residence  of  Germans  abroad,  at  such  a  time,  can  therefore 
collide  only  with  the  allegiance  of  the  subject  toward  the 
Empire  and  not  toward  a  single  State.  For  this  reason  the 
call  to  return  issues  from  the  Emperor  and  not  from  the  in- 
dividual State."  5  For  this  reason,  too,  the  call  is  a  general 
one,  to  citizens  of  all  Germany  who  may  be  abroad.  If  the 
offence  to  be  punished  by  loss  of  citizenship  is  an  offence 
against  the  Empire,  it  may  well  be  assumed  that  the  penalty 
meted  out  is  intended  to  be  commensurate  with  the  offence, 
that  is,  to  affect  the  relation  of  the  offender  to  the  Empire, 

1  Meyer,  Staatsr.  p.  212,  note  4.  4  Cahn,  op.  cit.  p.  144,  note  3. 

7  Seydel,  Bayr.  Staatsr.  I.  p.  288.  5  Laband,  I.  p.  135. 

J  Arndt,  Staatsr.  p.  63. 
M 


1 62  THE  GERMAN  EMPIRE 

and,  further,  that  it  is  intended  to  be  effectual.  The  mere 
loss  of  citizenship  in  the  home  State  would  accomplish  neither 
of  these  ends,  in  the  case  of  a  person  possessed  of  citizen- 
ship in  one  of  the  other  German  States.  For,  his  citizenship 
in  the  Empire  would  be  in  no  wise  affected  by  the  loss  of 
citizenship  in  the  home  State,  while,  under  §  7  of  the  Law, 
the  very  State  depriving  him  of  citizenship  would  be  com- 
pelled to  receive  him  back  again  upon  request,  which  would 
render  the  whole  proceeding  farcical  in  the  extreme,  and 
absolutely  nugatory.  Again,  so  far  as  §  22  is  concerned, 
it  may  be  asserted  that  if  the  deprivation  of  citizenship  under 
§  20  means  the  loss  of  citizenship  in  the  Empire,  that  is, 
in  every  State  of  the  Empire,  the  same  must  hold  good  for 
§  22,  as  well,  for  the  two  are  not  to  be  distinguished. 
Cahn  bases  his  contention  upon  the  claim  that  a  sharp  dis- 
tinction is  to  be  drawn  between  the  effect  of  these  two  sections. 
He  argues  for  the  general  loss  of  citizenship  under  §  20, 
along  the  lines  just  laid  down,  viz.  upon  the  ground  that  the 
act  of  disobedience  is  an  act  of  disloyalty  to  the  whole  Empire, 
and  should  be  punished  by  a  loss  of  citizenship  in  the  Empire. 
With  respect  to  §  22,  however,  he  maintains  that  a  differ- 
ence exists  which  affects  the  operation  of  the  law.  "The 
acceptance  of  service  in  a  foreign  State  without  permission  of 
the  home  government  affects  only  the  individual  State  con- 
cerned, and,  so  long  as  the  interests  of  the  Empire  do  not 
require  it,  as  they  do  require  it  under  §  20,  there  is  no  rea- 
son why  a  person  who  resists  the  call  of  the  government  of  a 
single  State  should  be  punished  with  the  loss  of  citizenship 
in  that  State  and  with  the  loss  of  such  other  citizenship  as  he 
might  possess  in  other  States  of  the  Union."  *  It  may  be 
conceded,  in  reply  to  Cahn,  that  cases  where  the  interests  of 
the  State  might  be  affected  without  affecting  the  interests  of 

1  Cahn,  op,  cit,  p.  145. 


CITIZENSHIP  UNDER  THE  GERMAN   CONSTITUTION      163 

the  Empire  are  thinkable,  yet  where  the  Empire  is  merely 
the  sum-total  of  the  several  States  corporately  conceived, 
it  is  altogether  improbable  that  the  interests  of  the  State  and 
the  interests  of  the  Empire  can  be  distinguished  from  each 
other  without  considerable  difficulty.  No  such  distinction 
as  Cahn  insists  on  is  provided  for,  or  suggested,  in  the  law 
itself.  The  loss  of  citizenship  under  §  20  and  under  §  22 
is  authorized  in  identical  language,  and,  on  the  face  of  it, 
the  wording  admits  of  no  different  interpretation  in  the  One 
part  of  the  law  than  in  the  other.  To  make  such  a  distinction 
where  none  is  implied  in  the  language  of  the  law  is  to  do  vio- 
lence both  to  the  law  and  to  the  canons  of  legal  interpretation. 
It  must  be  assumed  that  whatever  the  loss  of  citizenship, 
as  provided  for  in  the  law,  involves  in  the  one  case,  it  involves, 
for  lack  of  all  exception  in  the  law  itself,  in  the  other  case  also. 
If,  therefore,  the  law  in  §  20  imposes  the  complete  loss  of 
citizenship  as  a  penalty  for  refusal  to  obey  a  general  recall 
of  the  Emperor,  it  also  imposes  complete  loss  of  citizenship, 
in  §  22,  as  a  penalty  for  refusal  to  obey  a  specific  demand 
of  a  State  government,  that  one  of  its  citizens,  who  is  at  the 
same  time  a  citizen  of  the  Empire,  shall  withdraw  from  the 
service  of  a  country  foreign  to  the  Empire.  Moreover,  as 
urged  with  reference  to  the  effect  of  §  20,  the  depriving  of 
a  citizen  of  his  citizenship  in  a  State  would  degenerate  into  a 
mere  mockery,  if,  immediately  after  the  decision  of  the  cen- 
tral board  of  the  State  ousting  him  from  its  civic  body,  he 
could  apply  to  a  subordinate  board  for  reception  into  the  civic 
body  and  force  that  board  to  accept  him.  It  can  scarcely 
be  assumed  that  we  have  here  a  contradiction  in  the  terms  of 
the  one  law,  —  a  conflict  between  §  7  and  §§20  and  22. 
Where  two  interpretations  of  a  statute  are  possible,  one  of 
which  renders  the  law  inconsistent  and  nugatory,  while  the  other 
conforms  to  the  letter  of  the  law  and  at  the  same  time  does 


1 64  THE  GERMAN  EMPIRE 

no  violence  to  the  canons  of  common  sense  and  of  logic,  the 
second  interpretation  must  be  assumed  to  correspond  to  the 
intent  of  the  framers  of  the  law. 

5.  By  Long-continued  Residence  Abroad.  —  Germans  who 
leave  the  territory  of  the  Empire  and  reside  abroad  for  a 
continuous  period  of  ten  years  lose  thereby  their  citizenship.1 
The  lapse  of  citizenship  requires  no  specific  act  or  declara- 
tion of  the  person  residing  abroad,  in  order  to  become  effec- 
tive. The  loss  of  citizenship  follows  of  itself,  at  the  end  of  the 
period  fixed,  from  the  mere  fact  of  uninterrupted  residence  in 
a  foreign  land.  This  rule  does  not  apply,  however,  to  Ger- 
mans residing  abroad  who  are  in  possession  of  passports  or 
certificates  of  citizenship  (H eimatsschein) ,  so  long  as  these 
papers  are  still  valid ;  nor  does  it  apply  to  Germans,  resident 
in  a  foreign  land,  who  are  registered  with  the  German  consul 
in  the  district  in  which  they  locate.2  The  rule  is  inoperative. 

1  Law,  §  21,  Cl.  i.  With  respect  to  the  nature  of  this  loss  of  citizen- 
ship, Laband,  I.  p.  163,  says:  "Dieser  Erloschungsgrund  qualificirt  sich 
juristic  als  Nicht-gebrauch.  Ganz  unrichtig  ist  die  vielfach  vertreter.e 
Meinung,  den  Gesichtspunkt  eines  Verzichts  auf  die  Staatsangehorigkeit 
einzumengen.  Die  Staatsangehorigkeit  ist  kein  subjectives  Recht,  sondern 
ein  Status,  dessen  Voraussetzungen  das  objectives  Recht  festsetzt.  Man 
kann  auf  die  Reichsangehorigkeit  ebensowenig  verzichten  wie  auf  die  Gross- 
jahrigkeit,  Geschaftsfahigkeit,  etc."  The  German  Protectorates  are  not 
"foreign"  within  the  meaning  of  this  law.  See  Law  of  15  March,  1888 
(RGBl.  p.  71),  §  6,  Cl.  3. 

1  Law,  §  21,  Cl.  i.  According  to  the  Law  on  the  Organization  of  the  Im- 
perial Consulate,  of  8  November,  1867  (BGBl.  p.  '137),  §  12,  " Every  imperial 
consul  shall  keep  a  register  of  those  citizens  of  the  Empire  who  live  in  his 
official  district  and  report  themselves  to  him  for  the  purpose  of  registration. 
So  long  as  a  citizen  of  the  Empire  is  registered  in  the  consul's  books,  he  re- 
tains his  citizenship,  even  when  the  loss  of  it  would  ordinarily  follow  as  a 
result  of  his  residence  abroad."  According  to  the  "General  Instructions 
issued  to  Consuls,"  6  June,  1871,  only  those  persons  are  to  be  registered  who 
are  actually  dwelling  —  not  temporarily  residing  —  in  the  consular  dis- 
trict, and  who  request  such  registration.  They  must  also  convince  the 
consul  by  means  of  a  passport  or  certificate  that  they  are  bona  fide  citizens 
of  the  Empire. 


CITIZENSHIP  UNDER  THE  GERMAN  CONSTITUTION      165 

moreover,  in  the  case  of  Germans  who  are  occupying  official 
positions  abroad  in  the  service  of  their  government,  or  who 
are  engaged  in  the  service  of  a  foreign  government,  with  the 
permission  of  their  own  State.  The  ten-year  period  is  reck- 
oned from  the  date  upon  which  the  party  removes  from  the 
territory  of  the  Empire.  If  the  party  possesses  a  passport 
or  certificate,  the  period  is  reckoned  from  the  date  on  which 
these  papers  expire.1  This  period  may  be  interrupted  by 
registration  in  the  consular  list.  In  such  case,  it  is  reckoned 
from  the  day  following  the  expiration  of  the  term  of  registra- 
tion.2 Loss  of  citizenship  under  the  above  conditions  extends 
also  to  the  wife  and  to  those  minor  children  who  are  under  his 
parental  control,  excepting  daughters  who  are  or  have  been 
married,  provided  the  wife  and  children  are  also  abroad  with 
the  husband  and  father.3 

For  Germans  who  have  resided  continuously,  for  five  years, 
in  a  foreign  State,  and  have  acquired  citizenship  (Staatsange- 
hdrigkeit]  therein,  the  ten-year  period  may  be  reduced,  by 
treaty,  to  five  years,  no  distinction  being  made  as  to  whether 
the  parties  have  passports  and  certificates  or  not.4  Ger- 

1  Law,  §  21,  Cl.  i. 

2  This  term  ends  with  the  permanent  removal  of  the  party  out  of  the  dis- 
trict, with  the  loss  of  citizenship  in  the  Empire,  or  on  the  request  of  the  party. 
General  Instructions  of  6  June,  1871.     Cahn,  op.  cit.  171. 

3  Law,  §  21,  Cl.  2.     This  clause  has  provoked  much  discussion,  and  one 
may  find  a  division  not  only  between  jurists,  but  between  the  decisions  of 
the  authorities.      See  Cahn,  op.  cit.  pp.  154  ff.,  170  ff. ;   Laband,  I.  pp.  163, 
note  2,  164;   Meyer,  Staatsr.  p.  210;   Arndt,  Staatsr.  p.  64. 

4  Law,  §  21,  Cl.  3.     This  clause  was  framed  to  meet  certain  conditions 
touching  the  relations  between  Germany  and  the  United  States.     No  little 
friction  had  been  occasioned  by  reason  of  the  difference  in  theory  and  prac- 
tice with  respect  to  the  acquirement  and  loss  of  citizenship.     A  treaty  was 
concluded  between  the  North  German  Confederation  and  the  United  States 
on  22  February,  1868  (BGBl.  p.  228),  Art.  i  of  which  declares  that  "  citizens  of 
the  North  German  Confederation  who  become  citizens  of  the  United  States  of 
America  and  shall  have  resided  uninterruptedly  within  the  United  States 


1 66  THE  GERMAN  EMPIRE 

mans  who  have  lost  their  citizenship  by  reason  of  a  ten-year 
residence  abroad,  and  who  have  not  acquired  citizenship  in 
another  State,  may,  at  the  discretion  of  the  State  of  which  they 
were  formerly  citizens,  be  reinvested  with  citizenship  by  that 
State,  even  though  they  may  not  have  again  secured  a  domicile 
there.1  The  law  is  permissive  and  in  no  sense  obligatory. 
The  significance  of  the  provision  seems  to  lie  in  the  fact  that 
in  the  case  of  former  German  citizens  who  have  lost  their 
citizenship,  by  long  residence  abroad,  without  having  ac- 
quired citizenship  elsewhere,  the  competent  administrative 
authorities  of  the  State  to  which  they  formerly  belonged 
may  revive  their  citizenship,  and  in  so  doing  are  not  bound  by 
the  regulations  laid  down  in  §  8  of  the  Law  of  i  June, 
1870.  The  effect  of  this  law  may  not  necessarily  be  a  light- 
ening of  the  conditions  under  which  such  restitution  takes 
place.  In  fact,  it  may  be  the  imposition  of  considerable  bur- 
dens, which  could  not  be  laid  upon  a  person  seeking  citizen- 
ship under  the  provisions  of  §  8  of  the  law.2 

"  Germans  who  have  lost  their  citizenship  by  a  ten  years' 
residence  abroad,  and  who  afterward  return  to  the  territory  of 
the  Empire,  may  acquire  the  citizenship  of  that  State  in  which 


five  years,  shall  be  held  by  the  North  German  Confederation  to  be  American 
citizens  and  shall  be  treated  as  such."  The  Motive  to  §  21,  Cl.  3,  says 
with  reference  to  the  treaty:  "It  would  transgress  the  limits  of  necessity  and 
fail  of  any  sufficient  reason,  should  the  provisions  of  this  treaty  be  raised 
to  a  general  rule  of  law  and  should  the  ten-year  period  be  wholly  abandoned. 
On  the  other  hand,  it  would  not  do,  in  retaining  this  period,  to  make  an  ex- 
ception in  the  case  of  the  United  States  of  America  alone.  The  way  must 
be  held  open  also  for  similar  agreements  with  other  States.  Upon  this  con- 
sideration does  the  third  clause  of  §  21  rest."  The  United  States  made 
similar  treaties  with  Bavaria,  26  May,  1868  (Reg.  bl.  p.  2153)  ;  Wiirttemberg,  27 
July,  1868  (Reg.  bl.  1872,  p.  172) ;  Baden,  19  July,  1868  (Reg.  bl.  p.  1869,  579); 
Hesse,  for  part  outside  the  North  German  Confederation,  i  August,  1868  (Reg. 
bl.,  1869,  p.  599). 

1  Law,  §  21,  Cl.  4.  *  Cahn,  op.  cit.  p.  184,  note  30. 


CITIZENSHIP  UNDER  THE  GERMAN   CONSTITUTION      167 

they  have  located,  by  means  of  a  certificate  of  reception  issued 
by  the  higher  administrative  authority.  Such  certificate  must 
be  granted  upon  their  application  for  it."1  Here  is  an  essen- 
tial lightening  of  the  conditions  under  which  citizenship  in  a 
State  and  in  the  Empire  may  be  regained  after  it  has  lapsed 
by  reason  of  non-use.  This  reinstatement  is  not  optional 
with  the  State  in  which  the  applicant  formerly  had  his 
citizenship,  but  is  mandatory  upon  every  State  of  the  Empire. 
The  conditions  to  such  restitution  are  that  application  must 
be  made  by  the  party,  and  that  he  shall  have  acquired  a 
domicile  in  the  State  to  which  he  applies.  Nor  may  he  be 
hindered  in  securing  such  a  domicile.2  The  status  of  the  re- 
turned German  is  summed  up  thus  by  Cahn :  "The  former 
German,  who  has  lost  his  citizenship  through  ten  years' 
residence  abroad  and  has  not  acquired  a  foreign  citizenship, 
cannot,  on  his  return  to  Germany,  be  placed  in  a  more  favor- 
able position  than  that  German  who  has  remained  in  the 
country.  Hence,  as  in  the  case  of  the  latter,  reception  into 
another  State  of  the  Union  takes  place  'only  so  far  as  no 
ground  exists,  which,  according  to  §§  2-5  of  the  Law  of 
Free  Migration,  justifies  the  rejection  of  a  newcomer  or  the 
refusal  of  a  continuance,'  so  in  the  case  of  the  former  citizen, 
a  certificate  of  reception  is  to  be  granted  only  when  the  condi- 
tions laid  down  in  §§  2-5  of  the  Law  of  Free  Migration 
do  not  stand  in  the  way  of  his  securing  a  domicile.  The 
reception  in  another  State,  therefore,  is  not  to  be  granted 
under  every  condition  to  the  one  who  seeks  it.  On  the  other 
hand,  reception  into  his  former  State  cannot  be  refused."3 
III.  The  Common  Indigenat*  —  The  Imperial  Constitu- 

1  Law,  §  21,  Cl.  5. 

2  Decision  of  the  RGer.  22  May,  cited  by  Laband,  I.  p.  165,  note  i. 
1  Cahn,  op.  cit.  p.  189,  note  37. 

4  A  clear  and  comprehensive  treatment  of  this  subject  is  found  in  a  mono- 


1 68  THE  GERMAN  EMPIRE 

tion  of  Germany  contains  no  "Bill  of  Rights,"  safeguarding 
the  individual  citizen  of  the  Empire  against  the  encroach- 
ments of  the  State,  of  the  Empire,  or  of  both.  The  protec- 
tion of  the  citizen  is  left  to  the  constitutions  of  the  several 
States  or  to  ordinary  legislation.  Only  in  the  matter  of 
protection  abroad,  against  third  powers,  does  the  Imperial 
Constitution  make  specific  provision.  Art.  3  of  the  Con- 
stitution, however,  contains  certain  declarations  which  appear 
at  first  sight  to  guarantee  to  every  citizen  of  the  Empire 
certain  positive  rights  and  privileges.  This  article  reads,  in 
part,  as  follows:  "There  shall  be  a  common  denizenation 
(Indigenat)  for  all  Germany,  with  the  result  that  the 
members  (subjects,  citizens)  of  each  federated  State  shall 
be  treated  as  natives  (Inlander)  in  every  other  federated 
State,  and  accordingly  are  to  be  admitted  to  a  fixed  resi- 
dence, to  the  pursuit  of  business,  to  public  office,  to  the 
acquiring  of  real  estate,  to  the  securing  of  citizenship, 
and  to  the  enjoyment  of  all  other  civil  rights,  under  the 
same  conditions  as  the  native  born,  and  are  to  receive  equal 
treatment  in  matters  of  legal  prosecution  and  of  legal  pro- 
tection. 

"  No  German  shall  be  limited,  in  the  exercise  of  this  privi- 
lege, by  the  authorities  of  his  native  State  or  by  the  authorities 
of  any  other  federated  State. 

"  All  members  of  the  Union  shall  have  an  equal  claim  to  the 
protection  of  the  Empire  as  against  a  foreign  land." 

Article  3  creates  no  subjective  right  of  the  individual.  It 
does  not  say  that  every  German  has  the  right  to  a  permanent 
residence,  to  the  carrying  on  of  business,  to  public  office, 
and  so  on,  in  the  whole  Empire.  It  merely  says  that  whatever 
rights  a  State  may  grant  to  its  citizens  in  these  matters,  shall 

graph  by  Bockshammer,  Das  Indigenat  des  Art.  j,  RVerf.,  Tubingen,  1896. 
See  also  Laband,  I.  p.  167  ff.;  Seydel,  Comm.  pp.  48  ff. 


CITIZENSHIP   UNDER  THE  GERMAN   CONSTITUTION      169 

be  enjoyed  also  by  every  German  who  may  desire  them. 
No  attempt  is  made  in  the  article  to  determine  the  conditions 
under  which  a  German  may  secure  a  fixed  dwelling,  pursue 
his  business,  etc.  It  insures  simply  an  equal  treatment  with 
respect  to  these  matters  to  every  German.  Its  declaration  is 
not  tantamount  to  the  creation  of  positive  rights  for  the 
citizens  of  the  Empire.  It  is  rather  a  negative  proposition  to 
the  effect  that  no  German,  in  legal  relations,  shall  be  subjected 
to  more  unfavorable  regulations  than  the  members  of  the 
State  itself.1  It  grounds  no  claim  for  a  German  to  be  treated 
on  more  favorable  terms  than  a  foreigner,  but  only  protects 
him  against  being  treated  worse  than  the  citizens  of  the 
State. 

"The  scope  of  this  equality  of  the  outsider  to  the  native 
born  is  exhaustively  indicated  by  the  enumeration  intro- 
duced by  the  words 'and  accordingly'  (und  demgemass).  In 
all  the  enumerated  matters,  and  in  these  only,  shall  equality 
exist.  If  the  territory  staked  out  in  the  first  clause  of  Art.  3 
is  thus  legally  limited,  nevertheless  it  reaches,  as  a  matter  of 
fact,  extraordinarily  far.  Above  all,  the  general  clause, 
'and  to  the  enjoyment  of  all  other  civil  rights,'  is  important. 
'  Civil  rights '  means  here,  not  mere  rights  at  private  law  nor 
what  may  be  styled  subjective  public  rights,  but,  as  the  proper 
interpretation  of  the  provision  assumes,  all  the  public  and 
private  rights  which  do  not  fall  under  the  head  of  civic 
(staatsburgerlich]  or  political  rights.  Only  in  the  realm  of 
political  rights,  particularly,  therefore,  with  reference  to  the 
right  to  vote,  and  eligibility  to  election  to  the  representative 
bodies  of  the  State  and  of  the  Communes,  is  the  State  legis- 
lation at  the  present  time  still  unhindered  in  granting  prefer- 
ences to  its  own  citizens  over  those  who  are  not  its  citizens, 
and  especially  in  .excluding  these  outsiders  from  the  privilege 

1  Laband,  I.  p.  168. 


I/O  THE  GERMAN   EMPIRE 

of  the  franchise  in  State  and  communal  elections.  'In  no 
point  is  citizenship  in  the  Empire  and  citizenship  in  a  State 
more  sharply  differentiated  than  in  the  contrast  between 
election  of  the  Reichstag  and  election  of  the  State  Diet; 
here  only  are  both  actually  separated.'"1 

1  Anschutz,  in  Holtz.  Encychp.  II.  p.  528. 


CHAPTER  IX 
THE   JUDICIAL   ORGANIZATION   OF   THE   EMPIRE 

THE  present  judicial  organization  of  the  German  Empire 
is  based  upon  imperial  law  and  not  upon  the  Imperial  Con- 
stitution. The  preservation  of  legal  rights  and  the  adminis- 
tration of  justice  within  the  territory  of  the  Empire  form  one 
of  the  fundamental  purposes  for  which  the  Union  was  created. 
The  Imperial  Constitution,  however,  contents  itself  with 
reserving  to  the  Empire  the  power  to  legislate  with  respect 
to  the  "whole  domain  of  civil  and  criminal  law,  including 
judicial  procedure."1  In  the  exercise  of  its  power  to  legislate, 
the  Empire  has  passed  a  number  of  laws  designed  to  secure 
uniformity  in  the  administration  of  justice.  The  first  of 
these  laws,  the  Law  of  Judicial  Organization,  —  Gerichts- 
verfassungsgesetz, —  was  enacted  on  the  27  January,  iSyy.2 
It  was  followed  immediately  by  the  Code  of  Civil  Procedure, 
—  Civilprozessordnung,  —  of  30  January,  iSyy,3  and  the 
Code  of  Criminal  Procedure,  —  Strafprozessordnung,  —  of 
i  February,  187 7. 4  To  these  should  be  added  the  Bank- 
ruptcy Law,  —  Konkursordnung,  —  of  10  February,  i877,5 
and  the  law  regulating  the  functions  of  the  public  prosecutors 
and  of  members  of  the  bar,6  of  i  July,  1878.  All  these 
laws  went  into  effect  simultaneously  on  i  October,  1879, 
throughout  the  Empire.  Laws  were  also  passed  regulating 
the  costs  of  courts,  the  fees  of  court  officials,  the  fees  for 
witnesses  and  experts,  the  fees  for  attorneys,  and  laying  down 

1  RVerf.  Art.  4,  13.  •  Ibid.  p.  83.  B  Ibid.  p.  351. 

3  RGBl.  p.  41.  4  Ibid.  p.  253.  «  Ibid.  p.  177. 

171 


172  THE  GERMAN  EMPIRE 

rules  for  the  exercise  of  the  consular  jurisdiction.1  A  uniform 
Criminal  Code  was  enacted  26  February,  i8y6.2  A  uniform 
Civil  Code  was  passed  18  August,  1 896,3  and  a  uniform  Code 
of  Commercial  Law,  10  May,  1897,*  both  to  go  into  effect 
i  January,  1900. 

It  may  be  said,  in  brief,  that  Germany  possesses  a  uniform 
Civil  and  Criminal  Code,  a  uniform  Commercial  Code,  and  a 
uniform  Bankruptcy  Law,  and  that  the  administration  of 
justice  is  effected  under  federal  laws  regulating  the  organiza- 
tion of  the  courts,  establishing  the  rules  of  procedure,  and 
fixing  the  various  fees  incident  to  judicial  administration. 
The  Empire  has  not  taken  away  the  jurisdiction  of  the 
several  States.  The  exercise  of  this  jurisdiction,  in  the  most 
important  matters,  however,  is  regulated  according  to  im- 
perial norms.  In  order  to  secure  effectiveness  in  the  admin- 
istration of  justice  by  the  various  States,  the  Imperial 
Constitution  further  provides  for  imperial  legislation  respecting 
the  reciprocal  execution  of  judicial  decisions  in  civil  matters 
and  the  fulfilment  of  requisitions  in  general.5  Such  a  law 
was  enacted  under  the  North  German  Confederation,  21 
June,  i869,8  and  was  declared  part  of  the  imperial  law  on  the 
erection  of  the  Empire.7  Broadly  speaking,  then,  the  admin- 
istration of  justice  in  the  German  Empire  is  exercised  by  the 
individual  States,  in  conformity  with  federal  provisions  and 
under  mutual  obligation  to  aid  in  the  execution  of  all  judicial 
decisions  and  decrees. 

In  carrying  out  this  principle,  the  Empire  has  not  .aban- 
doned its  own  jurisdiction.  Before  the  founding  of  the 
Empire,  the  Law  of  12  June,  1869,  had  erected  a  Superior 
Court  of  Commerce, — Oberhandelsgerichl, — with  competence 

1  RGBl.  1878,  pp.  141,  166,  173;  1879,  PP-  176,   197- 

1  Ibid.  pp.  25,  40.  *  Ibid.  p.  219.  •  BGBl.  p.  305. 

3  Ibid.  p.  195.  •  RVerf.  Art.  4,  n.         7  Cf.  GVG.  §§  157-169. 


THE  JUDICIAL  ORGANIZATION   OF  THE   EMPIRE       1/3 

to  sit  as  a  court  of  last  resort  in  certain  specified  matters. 
To  the  extent  of  its  competence,  this  court  removed  jurisdic- 
tion from  the  several  States  and  vested  it  in  the  Union.  By 
the  Law  of  i  October,  1879,  the  Superior  Court  of  Commerce 
was  replaced  by  the  Reichsgericht,  or  Imperial  Court,  created 
by  the  Law  of  Judicial  Organization,  27  January,  1877. 
This  court  has  its  seat  at  Leipzig  and  is  possessed  of  both 
original  and  appellate  jurisdiction.  In  matters  of  conten- 
tious jurisdiction,  therefore,  the  jurisdiction  of  the  several 
States  is  not  final  in  all  cases,  but  in  certain  instances  is  subor- 
dinate to  the  jurisdiction  of  the  Empire. 

The  whole  field  of  the  ordinary  contentious  jurisdiction  — 
"ordentliche  streitige  Gerichtsbarkeit  "  —  at  private  law, 
then,  falls  within  the  exclusive  control  of  the  Empire,  and  is 
exercised  by  a  system  of  four  grades  of  courts  erected  by  the 
Law  of  Judicial  Organization.  These  courts  are  the  Amts- 
gerichte,  the  Landgerichie,  the  Oberlandesgerichte,  and  the 
Reichsgericht.1  To  the  first  three  classes  of  courts  named 
numerous  matters  of  "voluntary  jurisdiction"  —  jreiwillige 
Gerichtsbarkeit  —  may  be  assigned  by  State  law.2 

1  Section  8  of  the  Einjiihrungsgesetz  zum  Gerichtsverjassungsgesetz  provides 
that   when  in  any  State  several    Oberlandesgerichte  are  erected,  a  Supreme 
Court  —  Oberstes  Landgericht  —  may   be   erected   by  State   law,  to  which 
may  be  referred  for  decision  civil  cases  which  fall  within  the  appellate  and 
revisional  jurisdiction  of  the  Reichsgericht.     The  Law  of  n  April,   1877, 
fixing  the  seat  of  the  Reichsgericht  at  Leipzig,  has  excluded  Saxony  from 
taking  advantage  of  this  privilege.     Wiirttemberg  and  Baden  have  erected 
but  one  Oberlandesgericht.    The  smaller  States  could  not  support  more  than 
a  single  Oberlandesgericht,  so  that  Prussia  and  Bavaria  alone  are  in  a  posi- 
tion to  avail  themselves  of  this  privilege  of  erecting  a  court  of  this  nature. 
Prussia  has  declined  to  make  use  of  the  right.    Bavaria,  therefore,  is  the  only 
German  State  in  which  an  Oberstes  Landgericht  exists  at  present.     By  the 
State  Law  of  23  February  1879  (Bayr.  G.  und  Verord.  Bl.  1879,  p.  273),  Abt. 
42  ff.,  a  court  of  this  description  was  erected  in  Munich.      See  Laband,  III. 
P-  378. 

2  Matters  relating  to  guardianship,  the  probating  of  wills,  the  registra- 
tion of  land  titles,  etc. 


174  THE  GERMAN  EMPIRE 

I.  The  Amtsgerichte.  —  The  organization  of  these  courts 
is  left  wholly  to  the  individual  States,  who  determine  the 
number  of  judges  to  be  appointed  to  each  Amtsgericht.  In 
case  several  judges  are  assigned  to  a  single  court,  the  judicial 
business  is  divided  between  them  either  locally  or  according 
to  the  nature  of  the  matter,  each  judge  acting  singly,  the  divi- 
sion of  business  for  the  fiscal  year  having  been  previously 
determined  by  the  Praesidium  of  the  Landgericht,  or  next 
higher  instance,  in  conformity  to  provisions  laid  down  by 
the  State  Minister  of  Justice.1 

For  the  trial  and  decision  of  criminal  cases  there  are 
erected  in  connection  with  the  Amtsgerichte  what  are  known 
as  Schoffengerichte,  consisting  of  a  judge  of  the  Amtsgericht 
and  two  laymen,  called  Schoffen,  the  three  forming  a  single 
collegiate  court.  The  Schoffengericht  is  not  regarded  as  a 
separate  and  independent  judicial  authority,  but  as  a  "pro- 
cessual  form  of  the  Amtsgericht."2  During  trial,  the 
Schoffen  possess  all  the  rights  and  privileges  of  the  learned 
judge,  with  equal  voice  and  vote,  and  they  take  part  in  all 
decisions  which  may  be  necessary  in  the  course  of  the  trial 
and  which  do  not  relate  to  the  fixing  of  the  penalty.  All 
decisions  relating  to  the  case,  outside  the  trial  itself,  are 
made  by  the  learned  judge. 

The  office  of  Schoffe  is  an  honorary  one,3  and  can  be  held 

1  It  does  not  invalidate  the  proceedings  should  the  case  be  heard  by  a 
judge  other  than  the  one  assigned  to  that  particular  district  or  to  that  par- 
ticular class  of  judicial  business.  Where  there  are  several  judges  assigned 
to  an  Amtsgericht,  one  judge  is  designated  as  supervising  judge.  It  is  his 
duty  to  transact  such  business  as  may  come  before  the  court  as  a  collective 
authority,  especially  administrative  matters,  and  to  supervise  generally  the 
subordinate  court  officials.  GVG.  §22. 

3  Laband,  III.  p.  407,  citing  also  Motiven  zum  GVG.  p.  31.  Where 
there  are  several  judges  in  one  Amtsgericht,  the  State  Administration  of 
Justice  is  free  to  regulate  the  selection  of  a  judge  to  preside  over  the  Schoffen~ 
gericht.  *  GVG.  §  31. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       175 

only  by  a  German.1  Not  every  German,  however,  is  eligible 
to  serve  as  Schoffe.  Three  classes  may  be  distinguished: 
those  who  are  incompetent;  those  who,  though  competent, 
must  not  be  summoned;  and  those  who,  though  competent 
and  summoned,  may  refuse  service.  To  the  first  class  belong 
persons  who  have  lost  their  capacity  to  serve  as  Schoffen  by 
reason  of  a  criminal  judgment;  persons  against  whom  trial 
has  begun  on  a  charge  which  may  result  hi  a  sentence  re- 
moving civil  honors  or  taking  away  the  capacity  to  hold 
public  office ;  and  persons  who,  through  order  of  court,  are 
restricted  in  their  right  to  dispose  of  their  property.2  To 
the  second  class  belong  persons  who,  at  the  time  the  list  of 
Schoffen  is  published,  have  not  completed  the  thirtieth  year 
of  their  life,  or  who  have  not  lived  two  full  years  in  the 
Commune;  persons  who  have  received  public  charity  for 
themselves  or  for  their  family  during  the  three  years  immedi- 
ately preceding  the  publication  of  the  list;  persons  who,  on 
account  of  mental  or  physical  infirmity,  are  not  fit  to  perform 
the  functions  of  the  office,  and,  further,  servants,  certain 
officials,  persons  in  religious  service,  teachers  in  the  public 
schools,  active  military  persons,  etc.  The  State  laws  may 
also  designate  certain  higher  administrative  officials  who 
shall  not  be  summoned  to  serve  as  Schoffen.3  To  the  third 
class  belong  the  members  of  the  legislative  assemblies ;  per- 
sons who,  during  the  last  fiscal  year,  have  served  as  jurors  or 
have  sat  at  least  five  days  as  Schoffen;  physicians,  apothe- 
caries without  assistants;  persons  over  sixty-five  years  of 
age;  persons  who  give  reasonable  evidence  that  they  are 
unable  to  bear  the  expense  connected  with  Schoffen  service.4 

1  No  fee  is  attached  to  the  office.    The  Schoffen  may,  however,  receive 
compensation  for  travelling  expenses.     GVG.  §  55. 

•Ibid.  §32.  'Ibid.  §§32-34- 

4  Ibid.  §  35.      Should  a  person  falling  within  any  of  these  categories 


1/6  THE  GERMAN  EMPIRE 

The  Vorsteher,  or  presiding  officer  of  the  Commune,  makes 
out  a  list  of  the  persons  in  a  district  who  may  be  summoned  as 
Schoffen  and  exposes  it  for  a  week  to  the  inspection  of  the 
public,  then  sends  it,  together  with  such  objections  as  may 
have  been  raised  against  its  completeness  or  correctness,  to 
the  judge  of  the  Amtsgericht.  Each  year  there  assembles 
at  the  Amtsgericht  a  committee,  made  up  of  the  judge  of  the 
court,  an  administrative  official  appointed  by  the  president 
of  the  Regierung,  —  the  administrative  body  of  the  district 
(Bezirk),  —  and  seven  men  elected  by  the  representative  body 
of  the  Circle  (Kreis).  This  committee  passes  upon  the 
objections  laid  against  the  list  and  chooses  out  of  the  list 
as  finally  corrected  the  number  of  Schoffen  for  the  ensuing 
year,  as  well  as  a  number  of  alternates  to  serve  in  case  of  need. 
The  Schoffen  thus  selected,  and  the  alternates,  are  kept  in 
separate  lists,  from  which  the  president  of  the  Landgericht  is  to 
select  the  Schoffen  for  the  specific  sittings.  The  days  upon  which 
the  Schoffengericht  is  to  sit  are  fixed  beforehand  for  the  whole 
year,  and  the  order  in  which  the  Schoffen  are  to  serve  in  the 
several  sittings  is  determined  by  lot.  The  lots  are  drawn  by 
the  judge  of  the  Amtsgericht  in  open  court.1  This  precludes 
the  possibility  of  an  arbitrary  summons  or  a  selection  of  the 
Schoffen  to  sit  in  a  particular  case. 

At  their  first  appearance  for  service,  the  Schoffen  are  sworn 
for  the  period  of  the  fiscal  year.2  Schoffen  who  fail  to  appear 
at  the  proper  time,  without  sufficient  excuse,  or  who  avoid 
their  obligation  to  serve,  are  liable  to  a  fine  in  contempt.  This 
fine  may  run  from  five  marks  to  a  thousand  marks  together 
with  the  costs.3  The  statement  of  an  untruth  in  excuse  of 


be  placed  upon  the  list  and  be  regularly  summoned,  he  must  establish  within 
a  week  his  right  to  refuse  service,  else  the  right  becomes  invalid. 

*GVG.  §§36-45- 

1  Ibid.  §  51.  *  Ibid.  §  56. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       1 77 

failure  to  appear  subjects  the  delinquent  to  imprisonment 
for  two  months  in  addition  to  the  fine  in  contempt.1 

Schoffen,  like  jurors,  are  pledged  to  secrecy  as  to  what 
transpires  in  the  deliberations  and  votes  of  the  court.  No 
penalty,  however,  is  provided  for  the  violation  of  this  pledge, 
even  should  such  violation  be  the  result  of  a  bribe.  While  the 
Schoffen  hold  an  "office"  (Ami]  in  German  law,  they  are  not 
"officials"  (Beamteri)  within  the  meaning  of  the  "Imperial 
Law  Concerning  Imperial  Officials"  (Reichsbeamtengesetz). 
Hence  the  penal  provisions  of  that  law  touching  corruption 
do  not  apply  to  the  Schoffen.2 

The  Amtsgericht  is  a  court  of  first  instance  only.  Its 
civil  jurisdiction  extends  to  suits  involving  property  claims 
whose  value  in  money  or  its  equivalent  does  not  exceed  three 
hundred  marks;  to  suits  between  a  renter  and  tenant  or 
subtenant  of  dwellings  or  other  quarters,  or  between  the  tenant 
and  subtenant  with  reference  to  the  use  of  such  space,  the 
vacating  of  it,  the  disposition  of  articles  brought  to  the  rented 
quarters  by  the  tenant  or  subtenant,  etc. ;  to  suits  between 
master  and  servant,  employer  and  employee ;  to  suits  between 
travellers  and  landlords,  common  carriers,  emigrant  agents 
at  the  port  of  departure,  with  reference  to  hotel  bills  and 
charges,  transportation  charges,  freight  charges,  damages 
to  property  forwarded,  etc. ;  to  suits  touching  defects  in  cattle ; 
to  suits  over  damages  inflicted  by  game ;  to  claims  arising 
from  cohabitation  outside  of  wedlock ;  and  to  proceedings  in 
forced  sale,  levy,  etc.3  Certain  controversies  in  bankruptcy, 
not  assigned  to  the  Landgericht,  also  fall  within  the  jurisdic- 
tion of  the  Amtsgericht.*  The  competence  of  the  Amts- 

1  StGB.  §  138. 

2  Rechtsanwalt  Kann,  in  Deutsches  Recht,  edited  by  W.  Goetze,  Berlin, 
1903,  II.  p.  535-  *  GVG.  §  23. 

*  See  §§  112-114,  129,  Law  of  i  May,  1889,  revised  wording  of  20  May, 
1898  (RCBl.  p.  810). 


178  THE  GERMAN  EMPIRE 

gericht  is  further  regulated,  in  civil  matters,  by  a  number 
of  provisions  of  the  Law  of  Judicial  Organization  and  the 
Code  of  Civil  Procedure,  which  bring  various  matters  within 
the  jurisdiction  of  this  court.1 

The  great  majority  of  criminal  cases  within  the  jurisdic- 
tion of  the  Amis  gericht  is  tried  by  the  Scho  ft  en  gericht,  yet  in 
certain  cases  where  the  charge  is  mere  trespass,  and  the  act 
is  confessed,  the  Amis  gericht  may,  with  the  consent  of  the 
prosecuting  attorney  for  the  State,  try  the  case  and  decide  it 
without  summoning  the  Schoffen.  The  same  holds  with 
reference  to  cases  of  simple  stealing  under  the  forestry  laws.2 
Moreover,  there  is  a  great  mass  of  business  connected  with 
the  preliminary  proceedings  in  criminal  matters,  which  is 
transacted  by  the  judge  of  the  Amtsgericht  without  reference 
to  the  lay  members  of  the  Schoftengericht.  The  Schoften- 
gericht  is  erected  purely  for  criminal  matters  and  its  com- 
petence extends  to  all  misdemeanors  and  petty  offences,  the 
penalty  for  which  does  not  exceed  three  months'  imprison- 
ment, or  a  fine  of  six  hundred  marks,  or  both;  slander; 
bodily  injury ;  thievery ;  embezzlement ;  destruction  of  prop- 
erty; where  the  value  of  the  thing  stolen,  embezzled,  or 
destroyed  does  not  exceed  twenty- five  marks ;  the  receiving  of 
stolen  goods;  infraction  of  the  police  regulations  respecting 
field  and  forest;  etc.  Certain  criminal  cases  may  also  be 
assigned  to  the  Schoffengericht  by  the  Criminal  Chamber  of 
the  Landgericht,  on  motion  of  the  public  prosecutor  at  the 
opening  of  trial,3  where  it  is  to  be  assumed  from  the  qircum- 
stances  of  the  case  that  no  penalty  will  be  imposed  exceeding 
three  months'  imprisonment,  or  a  fine  of  six  hundred  marks, 
or  both. 

1  See  GVG.  §  24;  CPO.  §§  645,  675,  680,  685,  609,  689,  764,  828,  848, 
899,  919,  942. 

J  StPO.  52",  Cl.  2.  »  See  GVG.  §§  29,  75. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       179 

II.  The  Landgericht.  —  The  Landgerichte  are  collegiate 
courts,  composed  of  a  president  and  a  number  of  associate 
judges.1  The  number  of  judges  and  the  extent  of  the  terri- 
torial jurisdiction  of  the  court  are  determined  by  State  law. 
Each  Landgericht  must  be  divided  into  civil  and  criminal 
chambers.2  The  president  of  the  court  presides  over  the 
full  bench.  A  director  presides  over  each  chamber.  The 
president  of  the  court,  however,  presides  over  one  of  the 
chambers  as  well  as  over  the  full  bench,  and  makes  his  choice 
as  to  which  chamber  he  shall  preside  over  before  the  opening 
of  the  fiscal  year.  The  assignment  of  the  directors  to  the 
various  chambers  is  made  by  a  majority  vote  of  the  president 
and  directors  in  joint  meeting.  Should  there  be  a  tie,  the  vote 
of  the  president  decides.3  The  president,  the  directors,  and 
the  oldest  member  of  the  court  in  term  of  service  constitute 
the  Praesidium.  It  is  the  task  of  the  Praesidium,  before  the 
fiscal  year  opens,  to  distribute  the  business  of  the  year 
among  the  chambers,  to  assign  the  several  members  of  the 
court  to  the  various  chambers,  and  to  appoint  alternates  in 
case  necessity  for  them  should  arise.4  Every  judge  of  the 
court  must  be  a  member  of  some  chamber.  He  may  be  a 
member  of  more  than  one.  The  assignment  of  judicial  busi- 
ness within  the  chamber  is  made  by  the  director  of  that 
chamber.  The  Civil  Chamber  must  be  made  up  of  at  least 
three  members,  including  the  judge,  while  the  Criminal 
Chamber  must  have  five  members  in  order  to  proceed  to 
trial,  though  as  a  court  of  appeal  in  misdemeanors  and  in 
private  complaints  it  may  sit  with  three  members. 

On  the  nomination  of  the  president  of  the  Oberlandes- 
gericht,  certain  members  of  the  Landgericht  may  be  appointed 
by  the  State  Administration  of  Justice  as  "examining  judges" 
( Untersuchungsrichter) .  The  number  appointed  is  determined 

1  GVG.  §  58.         » Ibid.  §  59.         s  Ibid.  §  61.         *  Ibid.  §§  62,  63. 


l8o  THE  GERMAN  EMPIRE 

by  the  needs  of  the  court.  The  appointment  is  for  the  fiscal 
year.  The  examining  judge  is  competent  to  open  and  con- 
duct the  preliminary  investigation  in  criminal  matters.1 
Appointment  to  the  position  of  examining  judge  does  not 
exclude  membership  at  the  same  time  in  one  of  the  Civil 
or  Criminal  Chambers  of  the  Landgericht. 

When  an  Amtsgericht  is  located  at  a  considerable  distance 
from  the  Landgericht,  by  order  of  the  Minister  of  Justice  a 
Criminal  Chamber  may  be  constituted  in  connection  with  the 
Amtsgericht,  and  may  be  territorially  competent  for  the  dis- 
trict covered  by  that  particular  Amtsgericht  or  by  several 
Amtsgerichte.  This  Criminal  Chamber  is  made  up  of 
members  of  the  Landgericht  or  out  of  the  judges  of  the 
Amtsgerichte  in  the  district.  A  judge  is  summoned  by  the 
Minister  of  Justice  permanently  to  preside  over  the  chamber. 
The  determination  of  the  number  of  judges  of  the  Amts- 
gerichte or  of  the  Landgericht  who  shall  sit,  in  addition  to  the 
presiding  judge,  as  members  of  the  chamber,  as  well  as  the 
specific  summons  of  the  judges  for  such  service,  is  regulated 
by  the  laws  of  each  several  State.  The  appointments  are 
for  the  year.  To  these  Criminal  Chambers  may  be  assigned 
the  jurisdiction  of  a  regular  chamber  of  the  Landgericht, 
either  wholly  or  in  part.  The  fixing  of  the  limits  of  com- 
petence and  of  the  boundaries  of  its  territorial  jurisdiction 
lies  with  the  State  Administration  of  Justice.2 

When  the  State  Administration  of  Justice  holds  a  need  to 

1GVG.  §  60;  StPO.  §  182. 

2  In  Prussia  the  activity  of  these  Chambers  extends  as  a  court  of  first 
instance  to  all  cases  within  the  jurisdiction  of  the  Landgericht.  So  far  as 
the  actual  trial  is  concerned,  all  decisions  outside  the  actual  trial  are  reserved 
for  the  Landgericht.  As  an  appellate  court,  the  detached  chambers  are 
limited  to  those  cases  which  may  be  heard  by  the  Criminal  Chambers  of  the 
Landgericht  with  only  three  members,  i.e.  to  misdemeanors  and  private 
complaints. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       l8l 

exist,  Chambers  for  Commercial  Matters  (Kammer  }iir 
Handelssacheri)  may  be  erected  in  connection  with  the 
Landgerichte  for  the  whole  district  covered  by  the  Landgericht 
or  for  limited  portions  of  the  same.1  These  Chambers  for 
Commercial  Matters  are  simply  a  species  of  Civil  Chamber 
of  the  Landgericht  with  a  special  material  competence;  in 
other  words,  the  erection  of  these  Chambers  involves  merely 
a  legal  distribution  of  the  legal  business  within  the  same 
court  of  first  instance.2  The  activity  of  the  Chamber  for  Com- 
mercial Matters  is  always  the  exception.  It  arises  only  when, 
in  regular  procedure  before  the  Civil  Chamber  of  the  Land- 
gericht, a  motion  is  made  by  one  of  the  parties  to  refer  the 
case  to  the  Chamber  for  Commercial  Matters.  There  is  no 
special  procedure  for  suits  tried  in  these  Chambers.  Their 
competence  extends  to  those  civil  suits  at  law  assigned  to  the 
Landgericht  as  court  of  first  instance,  in  which  complaint  is 
made  against  a  merchant  as  defined  by  the  Code  of  Com- 
mercial Law,  with  respect  to  transactions  which  are  com- 
mercial transactions  for  both  parties;  suits  arising  out  of 
matters  of  exchange  within  the  meaning  of  the  Law  of  Bills  of 
Exchange,  or  suits  growing  out  of  certain  specified  papers ; 3 
suits  based  on  certain  legal  relations  in  commercial  matters ; 4 

1  For  literature  on  the  subject  of  Commercial  Courts,  see  Voigtel,  Ueber- 
sicht  der  Literatur  des  Handelsgerichts,  pp.  196  ff. 

2  The  authority  to  erect  these  Chambers  for  Commercial  Matters  is  found 
in   GVG.    §   100.      The  original  proposal  was   to  create  Handel sgerichte 
—  Commercial  Courts  —  as  a  peculiar  kind  of  regular  judicatory,  with  a 
considerably  wider  competence.     A  sharp  opposition  developed  in  the  debate 
on  the  draft  of  the  GVG.,  and  after  much  discussion  the  present  arrangement 
was  adopted. 

3  See   §  363,  Handelsgesetzbuch.      Such   papers   as   mercantile  instruc- 
tions and  obligations,  freight-bills,  warehouse-bills,  etc. 

4  For  example,  legal  relations  between  the  members  of  a  commercial 
company,  or  between  the  company  and  its  members,  etc. ;   matters  pertain- 
ing to  the  use  of  the  firm  name,  trade-marks,  samples,  models,  etc. ;   trans- 
actions with  agents,  etc. 


1 82  THE  GERMAN   EMPIRE 

and  suits  over  the  rebate  of  dues  collected  by  reason  of  the 
Imperial  Stamp  Tax  Law.1  Whatever  the  nature  of  the  suit, 
the  Chamber  for  Commercial  Matters  becomes  possessed  of 
it  only  on  motion  of  one  of  the  parties.2 

The  Chambers  for  Commercial  Matters  may  have  their 
seat  within  the  territorial  jurisdiction  of  the  Landgericht,  and 
may  be  located  even  in  places  where  the  Landgericht  is  not 
seated.  The  erection  of  such  chambers  is  determined 
by  the  judicial  administration  of  the  State  according  to  its 
estimate  of  the  need.  The  State  also  fixes  the  number  of  such 
chambers  to  be  created  and  establishes  the  bounds  of  their 
local  jurisdiction.  While,  therefore,  the  territorial  juris- 
diction of  the  chamber  cannot  exceed  that  of  the  Landgericht, 
it  may  be  much  less.  The  Chamber  for  Commercial  Matters 
may  be  located  at  the  seat  of  the  Amtsgericht.  In  such  case, 
however,  the  chamber  acquires  no  vital  connection  with  the 
Amtsgericht.  It  still  remains  a  division  of  the  Landgericht. 

The  Chamber  for  Commercial  Matters  is  composed  of  a 
presiding  judge,  appointed  from  the  Landgericht,  and  two 
laymen,  known  as  H andelsrichter  or  commercial  judges.  All 
members  of  the  chamber  possess  the  same  right  of  vote.  The 
office  of  H  andelsrichter  is  an  honorary  one.  No  salary  is 
attached  to  it,  nor  do  these  commercial  judges  receive  any 
recompense  or  remuneration  for  travelling  expenses.  The 
commercial  judges  are  appointed  for  a  term  of  three  years  and 
are  eligible  for  reappointment.  They  are  nominated  by 
those  bodies  which  are  organized  to  represent  the  mercantile 
classes.  The  State  decides  by  law  what  bodies  shall  be  per- 
mitted to  make  nominations  and  what  organ  of  the  State  shall 

1  GVG.  §  ioi ;  RStempelges.  §  43. 

1  No  such  chambers  are  found  in  the  higher  courts.  Appeals  from  the 
chambers  go  to  the  Oberlandesgericht  and  Reichsgericht  and  follow  the 
course  of  other  civil  suits  oa  appeal. 


THE  JUDICIAL  ORGANIZATION   OF  THE   EMPIRE        183 

make  the  appointments.1  While  no  imperial  law  makes  the 
acceptance  of  the  office  compulsory,  as  in  the  case  of  the 
Schoffen,  there  is  no  imperial  legislation  forbidding  the  State 
to  make  the  acceptance  compulsory.  In  fact,  Prussia  and 
Hamburg  have  made  laws  to  that  effect.  Any  German  is 
eligible  to  the  office  who  is,  or  has  been,  registered  as  a  mer- 
chant or  the  superintendent  of  a  stock  company  in  the  Com- 
mercial Register,  has  completed  the  thirtieth  year  of  his  age, 
and  lives  in  the  district  in  which  the  Chamber  for  Commer- 
cial Matters  is  located.  Persons  who,  by  reason  of  a  judicial 
decree,  are  restricted  in  the  administration  of  their  property 
cannot  be  appointed  to  the  office  of  commercial  judge.  Be- 
fore entering  upon  his  duties  the  H andelsrichter  must  take 
the  oath  of  office.  During  the  term  of  their  service  the  com- 
mercial judges  have,  with  respect  to  their  office,  the  same 
rights  and  privileges  which  are  accorded  to  udicial  officials. 
They  are  State  officials  2  and  as  such  are  subject  to  discipline. 
Unlike  the  Schoffen,  they  may  be  tried  as  officials  under  the 
Code  of  Criminal  Procedure.3  Should  a  commercial  judge 
lose  one  of  his  qualifications  to  office  during  his  term  of  ser- 
vice, he  is  to  be  removed  by  the  Civil  Senate  of  the  Oberlandes- 
gericht  after  due  hearing.4 

For  the  trial  and  decision  of  criminal  matters,  Schwur- 
gerichte,  or  jury  courts,  meet  periodically  "bei  den  Land- 
gerichten"  Although,  according  to  the  system  of  courts, 
these  Schwurgerichte  belong  to  the  Landgerichten,  neverthe- 
less the  connection  is  a  very  loose  one.5  They  are  not  per- 

1  In  Prussia  the  nominations  TC  made  by  the  Chambers  of  Commerce 
and  Merchants'  Associations.     The  king  makes  the  appointments. 

2  See  Laband,  III.  p.  458. 

8  They  are  not,  however,  professional  servants  of  the  State,  and  the  rules 
touching  the  promotion,  transference,  and  retirement  of  State  officials  do  not 
apply. 

4  GVG.  §  117.  6  Laband,  III.  p.  410. 


1 84  THE  GERMAN  EMPIRE 

manent  courts,  but  meet  at  stated  periods  fixed  by  the  laws 
of  the  State  or  by  the  State  Administration  of  Justice.1 
The  Schwurgerichte  are  composed  of  three  learned  judges,  in- 
cluding the  presiding  judge,  and  twelve  jurors  —  Geschwo- 
renen  —  summoned  to  decide  the  question  of  guilt.  The 
presiding  judge  is  appointed  for  each  session  by  the  president 
of  the  Oberlandesgericht,  and  is  selected  from  the  members  of 
the  Oberlandesgericht  or  from  the  members  of  the  Land- 
gericht  located  in  jurisdictional  territory  of  the  Oberlandes- 
gericht. The  alternate  presiding  judge  as  well  as  the  re- 
maining judicial  members  of  the  court  are  appointed  by  the 
president  of  the  Landgericht  from  the  members  of  the  Land- 
gericht.* 

The  office  of  juror  is  an  honorary  one  and  can  be  assumed 
only  by  a  German.3  The  rules  governing  the  competence  to 
serve  and  the  summoning  of  Schoffen  apply  also  to  jurors.4 
The  fixing  of  the  number  of  jurors  to  be  assigned  to  each 
Sckwurgericht  and  the  distribution  of  the  jurors  among  the 
various  Amtsgericht  districts  is  the  work  of  the  State  Adminis- 
tration of  Justice.5  The  list  of  persons  eligible  for  duty  as 
Schoffen,  as  made  out  by  the  committee  to  which  reference 
has  been  made  in  discussing  the  selection  of  these  officials, 
serves  also  as  a  list  from  which  the  jurors  are  chosen.  Out 
of  the  list  from  which  the  Schoffen  are  to  be  selected,  the 
committee  chooses  a  number  of  persons  competent  to  do 

1  In  Prussia  the  time  for  beginning  a  sitting  of  the  Schwurgerichte  is  fixed 
by  the  president  of  the  Oberlandesgerichte.  As  a  rule  a  session  of  the  Schwur- 
gerichte shall  not  exceed  two  weeks  (Allgem.  Verfug.  of  22  May,  1882,  JMBl. 
p.  146). 

*GVG.  §§  81-83. 

8  Ibid.  §  84. 

*  Ibid.  §  85.     For  qualifications  of  Schoffen  see  above,  p.  175. 

6  Ibid.  §  86.  No  one  shall  be  compelled  to  serve  as  juror  and  Schoffe 
in  the  same  fiscal  year.  GVG.  §  97. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       185 

jury  duty.  The  number  thus  chosen  must  be  three  times  that 
fixed  by  the  State  Administration  of  Justice  as  needed  for  the 
district.  The  selection  of  the  committee  is  not  final.  The 
names  chosen  by  the  committee  form  what  is  known  as  the 
"  list  of  nominees ' '  —  Vorschlagsliste.  This  list,  together  with 
such  objections  as  may  have  been  raised  respecting  the  names 
thereon,  is  sent  to  the  president  of  the  Landgericht.  From 
this  list  there  is  selected  finally,  in  a  sitting  of  the  Landgericht 
consisting  of  five  members,  including  the  president  and 
directors,  the  requisite  number  of  jurors  and  alternate 
jurors,1  the  jurors  and  alternate  jurors  being  recorded  in  two 
separate  "year  lists."  From  the  year  list  the  president  of  the 
Landgericht,  in  an  open  sitting  of  the  Landgericht  at  which 
two  members  besides  himself  are  present,  and  hi  the  presence 
of  the  State  attorney,  chooses  by  lot  thirty  jurors,  who  form 
the  "  verdict  list "  for  the  single  session  of  the  Schwurgericht? 
Out  of  this  verdict  list  a  jury  of  twelve  men  is  chosen,  also 
by  lot,  certain  rights  of  challenge  being  given  to  both  prose- 
cutor and  defendant  at  the  opening  of  trial.3  Jurors  who 
fail  to  appear  are  liable  to  the  same  punishment  as  Schofien 
in  the  same  circumstances,  and,  like  Schoffen,  may  be  im- 
prisoned should  an  untruth  be  set  forth  in  excuse  for  delin- 
quency.4 The  Criminal  Chamber  of  the  Landgericht  may 
also  decide  that  single  sessions  of  the  Schwurgericht  shall  be 

1  In  every  trial  before  the  Schwurgerichte,  one  or  more  alternate  jurors 
are  chosen  at  the  time  the  regular  jury  is  made  up.  These  alternates  sit  in  the 
case  and  have  all  the  privileges  of  jurors.  Should  a  juror  be  incapacitated, 
his  place  is  taken  by  an  alternate  who  has  heard  the  evidence,  and  the  trial 
proceeds.  The  alternate  has,  of  course,  no  active  part  in  the  determination 
of  the  question  of  guilt  unless  called  upon  thus  to  take  the  place  of  an  in- 
capacitated juror. 

*GVG.  §§89-^2. 

8  See  StPO.  §§  278-288.  See  article  by  the  writer  in  Pol.  Sci.  Quart. 
for  December,  1904. 

4  GVC.  5  96;  StGB.  §  138. 


1 86  THE  GERMAN  EMPIRE 

held  in  places  other  than  the  seat  of  the  Landgericht.1  The 
Minister  of  Justice  may  also  decree  that  the  districts  of  several 
Landgerichte  shall  be  united  in  one  Schwurgericht  district, 
and  that  the  sessions  of  the  Schwurgericht  shall  be  held  at 
the  seat  of  one  of  the  Landgerichte} 

So  far  as  the  competence  of  the  Landgericht  is  concerned, 
broadly  speaking,  it  extends  in  civil  matters  to  all  suits  which 
are  not  assigned  to  the  Amtsgericht.3  The  Landgericht 
has  exclusive  jurisdiction,  irrespective  of  the  value  of  the 
object  in  dispute,  in  certain  claims  against  the  Imperial 
Fiscus  and  in  claims  against  imperial  officials  where  these 
officials  are  charged  with  overstepping  the  bounds  of  their 
authority  or  with  neglect  of  official  duty.  Further,  the  laws 
of  the  State  may  assign  exclusively  to  the  Landgericht  certain 
claims  of  State  officials  against  the  State,  based  on  official 
service,  administrative  decrees,  etc.,  irrespective  of  the 
amount  involved.4  The  Landgericht  serves  as  an  appellate 
court  for  civil  suits  tried  before  the  Amtsgericht.5  Complaints 
in  bankruptcy  proceedings  are  also  brought  before  the 
Landgericht.  The  State  may  assign  to  the  Landgericht,  as 
a  court  of  first  and  second  instance,  numerous  matters  of 
"voluntary"  jurisdiction. 

The  Criminal  Chambers  of  the  Landgericht  are  competent 
as  court  of  first  instance  for  the  trial  of  crimes  which  do  not 
fall  within  the  jurisdiction  of  the  Schwurgericht:  crimes 
entailing  a  penalty  of  imprisonment  in  the  penitentiary  of 
not  more  than  five  years,  with  or  without  additional-'  penalty ; 
crimes  committed  by  persons  under  eighteen  years  of  age; 
indecent  conduct  with  persons  under  fourteen  years  of  age; 

1  GVG.  §  98.  2  Ibid.  §  99. 

*  Ibid.  §  70,  Cl.  i.  The  Chamber  for  Commercial  Matters  is  here  in- 
cluded. 

4  Ibid.  §  70.  «  Ibid.  §  71. 


THE  JUDICIAL   ORGANIZATION  OF  THE   EMPIRE       187 

graver  cases  of  thievery,  etc.  As  a  court  of  second  instance 
the  Criminal  Chambers  of  the  Landgericht  are  competent  to 
hear  appeals  from  the  judgment  of  the  Schoftengericht  and 
of  the  Amtsgericht  in  certain  cases.1  The  competence  of  the 
Schwurgericht  extends  to  the  trial  of  crimes  which  do  not 
fall  within  the  jurisdiction  of  the  Criminal  Chambers  of  the 
Landgericht  or  the  Reichsgericht.2  An  appeal  may  be  taken 
from  the  judgment  of  the  Schwurgericht  to  the  Criminal  Senate 
of  the  Reichsgericht.3 

III.  The  Oberlandesgericht. —  The  Oberlandesgerichte  are 
courts  of  appellate  jurisdiction  only.  They  are  collegiate 
courts,  divided  into  Civil  and  Criminal  Senates.  The  num- 
ber of  justices  and  of  senates,  the  distribution  of  business 
among  the  various  senates,  and  the  assignment  of  the  mem- 
bers of  the  court  to  the  several  senates  are  determined  by 
State  law.  At  the  head  of  the  court  stands  a  president  of 
the  Oberlandesgericht.  Each  senate  is  also  provided  with  a 
president.4  The  president  of  the  court,  the  senate  presi- 
dents, and  the  two  oldest  members  constitute  the  Praesidium.5 
In  order  to  hear  cases  brought  before  them,  the  Senates 
must  be  composed  of  at  least  five  members,  including  the 
presiding  judge.6 

In  civil  matters,  the  Oberlandesgericht  hears  appeals  from 
the  judgment  of  the  Landgericht,  where  the  Landgericht  is 
the  court  of  first  instance,  and  complaints  arising  out  of  deci- 
sions of  the  Landgericht.7  It  also  decides  certain  questions 

1  See  GVG.  §  76,  and  StPO.  §  211,  Cl.  2. 

2  GVG.  §  80.     The  Schwurgericht  is  also  competent  to  try  crimes  com- 
mitted by  the  press,  where  such  competence  had  been  assigned  to  it  by  State 
law  prior  to  the  introduction  of  the  GVG.,  e.g.  in  Bavaria  and  Wiirttemberg, 
and  to  a  certain  extent  in  Baden  and  Oldenburg.     Laband,  III.  p.  403. 

8  GVG.  §  136,  2.        4  Ibid.  §§  119,  120.       5  Ibid.  §  121.       •  Ibid.  §  124. 
7  Ibid.  §  123,  i,  4.     It  may  hear  complaints  against  the  decision  of  the 
Landgericht  in  certain  bankruptcy  matters.     Konkursord.  §§  72,  73,  Cl.  3. 


1 88  THE  GERMAN   EMPIRE 

and  conflicts  with  respect  to  jurisdiction  in  the  lower  courts. 
In  criminal  matters  the  Oberlandesgericht  has  the  power 
of  revision  as  to  judgments  of  the  Criminal  Chambers  of  the 
Landgericht  rendered  as  an  appellate  court,  and  as  to  judg- 
ments of  the  Criminal  Chambers  of  the  Landgericht  rendered 
as  a  court  of  first  instance,  so  far  as  the  revision  is  based 
exclusively  upon  the  infraction  of  a  legal  principle  contained 
in  the  laws  of  the  State.  The  Oberlandesgericht  also  hears 
complaints  against  criminal  judgments  of  a  court  of  first 
instance,  where  the  Criminal  Chambers  of  the  Landgericht 
are  not  competent,  and  complaints  against  the  decisions  of 
the  Civil  Chambers  of  the  Landgericht  rendered  as  a  court  of 
second  instance.1 

IV.  The  Reichsgericht.  —  The  Reichsgericht  is  the  sole 
imperial  court,  and  has  its  seat  at  Leipzig.  It  is  collegiate 
in  its  organization,  is  divided  into  Civil  and  Criminal  Senates, 
and  is  composed  of  a  president,  the  senate  presidents,  and 
associate  justices.  The  members  of  the  Reichsgericht  are 
imperial  officials,  and  are  appointed  by  the  Kaiser,  upon 
nomination  by  the  Bundesrat?  The  appointments  are  for 
life,  with  a  fixed  salary.  The  members  of  the  Reichsgericht 
are  entirely  exempt  from  State  control.  The  number  of 
senates  into  which  the  court  shall  be  divided  is  determined 
by  the  Imperial  Chancellor.8  Seven  members  of  a  senate, 
including  the  president  of  it,  must  be  present  in  order  to 
render  the  proceedings  valid.4  Where  the  decision  of  the 
full  court  is  to  be  had,  or  a  decision  of  several  combined 
senates,  two- thirds  of  the  membership  of  the  court  or  of  the 

1  GVG.   §   123,  2,  3,  5.     For  further  competence  of   the  Oberlandes- 
gericht see  StPO.  §§  4,  12,  13,  14,  15,  19,  27,  170. 

2  GVG.  §  127,  Cl.  i. 

8  At  present  there  are  7  Civil  and  4  Criminal  Senates,  10  senate  presidents, 
and  81  justices.     See  GVG.  §  126. 
4  GVG.  §§  132,  140. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       189 

combined  Senates  must  be  present.  The  number  of  mem- 
bers must  be  an  uneven  one.  Should  this  chance  not  to  be 
the  case,  the  judge  youngest  in  term  of  service  —  should  there 
be  more  than  one  of  the  same  length  of  term,  the  youngest  in 
age  —  has  no  vote  in  the  decision.1  The  assignment  of  the 
members  to  the  various  senates,  the  distribution  of  business 
among  the  several  senates,  the  arrangement  of  substitutes, 
etc.,  are  determined  by  the  Praesidium.  The  Praesidium 
consists  of  the  president  of  the  Reichsgericht,  the  presidents 
of  the  senates,  and  the  four  oldest  justices.  Judges  who  are 
not  regularly  appointed  members  of  the  Reichsgericht  may 
not  be  called  in  to  serve  as  assistant  justices.2  The  proceed- 
ings of  the  Reichsgericht  are  conducted  in  conformity  with  an 
"Order  of  Business,"  drawn  up  by  the  full  court  and  ratified 
by  the  Bundesrat.3 

In  civil  suits,  the  Civil  Senates  of  the  Reichsgericht  are  com- 
petent to  hear  and  decide  complaints  against  the  decisions  of 
the  Oberlandesgericht.4  They  may  also  revise  final  judgments 
of  the  Oberlandesgericht  rendered  as  a  court  of  second  in- 
stance.5 In  order  to  support  a  revision  it  must  be  shown 
that  the  decision  is  based  upon  an  infraction  of  an  imperial 
law  or  a  law  whose  operation  extends  beyond  the  jurisdiction 
of  the  court  from  whose  decision  the  appeal  is  made.6  The 

1  GVG.  §  139.  2  Ibid.  §§  133,  I34. 

3  Ibid.  §  141.  Compare  Proclamation  of  the  Imperial  Chancellor, 
8  April,  1880  (Centralblatt,  p.  190),  and  Proclamation  of  25  July,  1886 
(Centralblatt,  p.  300). 

*  GVG.  §  135.     Cf.  CPO.  §  568,  Cl.  2,  4. 

8  In  suits  involving  property  claims,  a  revision  is  permissible  only  when 
the  value  of  the  property  thus  involved  exceeds  1500  marks,  unless  a  question 
of  lack  of  jurisdiction  arises,  or  a  question  of  the  regularity  of  the  remedy 
or  of  the  allowableness  of  appeal,  or  unless  the  suit  touches  a  matter  within 
the  exclusive  jurisdiction  of  the  Landgericht,  no  matter  what  the  value  of 
the  property  in  dispute  may  be. 

8  See  CPO.  §§  545,  546,  547,  548.    For  certain  exceptions,  see  Kais. 


THE  GERMAN   EMPIRE 


Civil  Senates  may  also  decide  certain  questions  which  may 
arise  touching  the  subordinate  courts:  controversies  over 
local  jurisdiction,  questions  as  to  what  court  is  competent  in 
cases  where  the  regularly  competent  court  is  prevented  from 
hearing  the  matter,  conflicts  of  competence  between  several 
courts,  etc.1 

The  Criminal  Senates  of  the  Reichsgericht  are  competent 
to  hear,  as  court  of  first  and  last  instance,  cases  of  high  treason 
and  treason  against  a  State,  so  far  as  these  crimes  are  directed 
against  the  Kaiser  or  Empire,  as  well  as  cases  of  betrayal  of 
military  secrets.2  Further,  the  Criminal  Senates  have  the 
power  of  revision  as  to  judgments  of  the  Criminal  Chambers 
sitting  as  courts  of  first  instance,  so  far  as  the  revision  is  not 
based  exclusively  upon  the  infraction  of  a  State  law.  They 
may  also  revise  the  judgments  of  the  jury  courts.3 

The  Reichsgericht  is  also  competent  to  hear  appeals  from 
the  Consular  Courts  in  both  civil  and  criminal  matters,4 
and  appeals  from  the  decisions  of  those  officials  in  the  Pro- 
tectorates who  are  invested  with  judicial  powers.5  It  sits 
as  a  court  of  first  and  last  instance  in  certain  matters  of  con- 

Verord.  of  28  September,  1879  (RGBl.  p.  299),  in  connection  with  the  Procla- 
mation of  ii  April,  1880  (RGBl.  p.  102),  also  laws  of  15  March,  1881  (RGBl. 
p.  38),  24  June,  1886  (RGBl.  p.  207),  and  30  March,  1893  (RGBl.  p.  363). 
RGer.  has  also  jurisdiction,  as  appellate  court,  in  certain  matters  of  "volun- 
tary" jurisdiction. 

1  See  CPO.   §§  45,  Cl.  i  ;  36,  650,  651,  676. 

2  See  Law  of  3  July,  1893  (RGBl.  p.  205),  §§  i  and  3.     In  such  cases 
the  First  Criminal  Senate  conducts  the  preliminary  examination,  and  the 
trial   is  had  before  the  Second  and  Third   Criminal  Senates.     GVG.    §§ 
136,  Cl.  i,  i;    138,  and  §  12  of  the  Law  of  3  July,  1893. 

3  GVG.  §  136,  Cls.  i,  2.      See  also  GVG.  §  136,  Cl.  2.      A  revision  can 
be  supported  only  on  the  plea  that  the  judgment  is  based  upon  an  infraction 
of  law.     StPO.  §  376.     For  certain  other  matters  which  come  before  the 
Criminal  Senates,  see  StPO.  §§  12,  13,  14,  19,  15,  27. 

4  Konsulargerichtsbarkeitgesetz  of  7  April,  1900  (RGBl.  p.  213),  §  14. 
1  Schutzgebeitsgesetz  of  25  July,  1900  (RGBl.  p.  813),  §  a. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       191 

sular  jurisdiction,  where  the  consul  refuses  judicial  assist- 
ance provided  in  the  Law  of  Judicial  Organization,  or  where 
a  person,  acquitted  in  certain  proceedings,  sues  for  damages.1 
The  Reichsgericht  is  also  an  appellate  court  with  respect  to 
decisions  of  the  Imperial  Patent  Office  as  to  the  invalidity  of 
a  patent  or  as  to  its  withdrawal. 

When  one  Civil  Senate  wishes  to  dissent  from  the  decision 
of  another  Civil  Senate  or  from  a  decision  of  the  united  Civil 
Senates  on  a  question  of  law,  or  where  one  Criminal  Senate 
wishes  to  dissent  from  the  decision  of  another  Criminal  Sen- 
ate or  from  the  decision  of  the  united  Criminal  Senates 
as  to  a  point  of  law,  the  matter  In  dispute  is  to  be  brought 
in  the  one  instance  before  the  united  Civil  Senates  and  in 
the  second  instance  before  the  united  Criminal  Senates. 
Where,  however,  a  Civil  Senate  wishes  to  dissent  from  a  deci- 
sion of  a  Criminal  Senate,  or  from  a  decision  of  the  united 
Criminal  Senates,  or  where  a  Criminal  Senate  wishes  to  dis- 
sent from  a  decision  of  a  Civil  Senate  or  from  the  decision  of 
the  united  Civil  Senates ;  or  where  a  Senate,  Civil  or  Criminal, 
wishes  to  dissent  from  a  decision  of  the  whole  court,  the 
question  of  law  is  determined  by  the  court  in  plenum. 

V.  The  Judiciary.  —  The  judicial  institutions  of  Germany 
are  based  upon  imperial  law :  the  Gerichtsverjassungs- 
gesetz  of  27  January,  1877,  with  the  revision  of  20  May,  1898. 
All  judges  in  the  four  classes  of  courts  already  considered 
are  appointed,  and  certain  qualifications  are  demanded  by 
law  of  those  who  would  exercise  the  functions  of  the 
judicial  office.2 

1  Konsularg.  G.  §  18,  in  connection  with  GVG.  §  160,  Cl.  I,  and  §  159, 
Cl.  2. 

1  For  literature  on  the  subject  of  the  judicial  office  in  Germany,  see 
Jahrbuch  der  Preussischen  Gerichtsverjassung,  24  Jahrg.  1900,  §§7,  10, 
28  ff.  The  best  discussion  from  the  standpoint  of  constitutional  law  is  found 
in  Laband,  Staatsrecht  des  Deutschen  Reichs,  4th  edition,  1901,  III.  pp.  335  ff. 


THE  GERMAN   EMPIRE 


In  fixing  by  imperial  legislation  the  requirements  for  eligi- 
bility to  a  judgeship,  instead  of  leaving  the  matter  to  the  de- 
termination of  each  several  State,  the  Commission  of  Justice 
for  the  Reichstag  simply  carried  to  a  logical  conclusion  cer- 
tain ordinances  already  placed  upon  the  statute  book.  A 
uniform  procedure,  both  civil  and  criminal,  had  been  provided 
for  the  whole  Empire,  in  the  Cimlprozessordnung  of  30  Janu- 
ary, 1877,  with  the  amendments  of  17  May,  1895,  and  in  the 
Strafprozessordnung  of  i  February,  1877.  The  Commission 
therefore  argued  that  the  law  regulating  the  judicial  institu- 
tions of  the  Empire,  while  it  made  no  attempt  at  a  complete 
organization,  but  sought  rather  to  lay  down  the  principles 
necessary  to  a  harmonious  operation  of  the  laws  of  procedure, 
could  not  well  dispense  with  general  provisions  touching  the 
professional  training  and  position  of  the  persons  in  whose 
hands  were  to  be  placed,  to  a  preeminent  degree,  the  adminis- 
tration and  application  of  those  laws  of  procedure.  The 
Report  of  the  Sixth  Commission  of  the  Reichstag,  1898,  says: 
"Agreeing  with  the  views  expressed  by  the  various  speakers 
in  the  general  debate  of  the  Reichstag,  the  Commission  has 
well-nigh  unanimously  held  it  to  be  a  logical  necessity  arising 
out  of  the  ordinances  establishing  the  civil  and  criminal 
procedure,  to  lay  down,  under  the  title  'The  Judicial  Office,' 
at  least  the  minimal  requirements  for  eligibility  to  the  office 
of  judge  in  the  German  Empire,  and  to  prescribe  those 
indispensable  guarantees  of  judicial  independence,  which  no 
German  judge  may  ever  be  without.  Sections  i-u  (of  the 
Gerichtsverjassungsgesetz),  adopted  by  the  Commission, 

See  also  Von  Ronne,  Staatsrecht  des  Deutschen  Reichs,  ad  edition,  II.  pp.  9  ff.  ; 
Zorn,  Staatsr.  d.  D.  Reichs,  II.  pp.  365  ff.  ;  Schulze,  Deutsches  Staaisr. 
§  199;  Hanel,  Devisches  Staatsr.  I.  pp.  711  ff.;  Von  Ronne-Zorn  Staatsr.  d. 
Preuss.  Man.  5th  edition,  I.  §  12,  III.  A,  §  43.  Also  Rintelen,  Gerichtshoj 
und  Justizverwaltung,  2d  edition,  1889;  Miiller,  Preuss.  Justizverivaltung, 
5th  edition,  1901  ;  Pfafferoth,  Jahrb.d.  D.  Gerichtsverjassung,  7  Jahrg.,  1898. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       193 

make  no  attack  on  the  judicial  sovereignty  of  the  individual 
States;  at  any  rate,  they  go  no  farther  in  the  organization 
of  the  judiciary  than  the  ordinances  regulating  procedure 
require.  They  attach  themselves  to  legal  principles  that 
have  existed  in  Germany  from  old  time,  and  they  are  essen- 
tially borrowed  from  the  prevailing  law  of  the  greatest 
German  State.  ...  If  imperial  legislation  is  called  upon 
to  map  out  for  the  judge  the  civil  and  criminal  procedure 
which  he  must  follow,  and  to  define  the  judicial  authority,  it 
cannot  possibly  leave  the  several  States  free  to  settle,  perhaps 
in  ways  wholly  variant,  the  question  of  the  preparatory  train- 
ing of  the  judge,  and  his  place  in  the  life  of  the  State  over 
against  the  governments  and  the  people."1 

In  the  Gerichtsverfassungsgesetz,  therefore,  imperial  leg- 
islation has  fixed  the  minimum  of  requirement  for  exercis- 
ing the  functions  of  a  learned  judge.  The  law,  in  other 
words,  has  drawn  the  line  below  which  the  qualifications  of 
that  person  may  not  fall  who  would  be  eligible  to  the  judicial 
office  in  any  one  of  the  regular  courts  in  Germany.  Accord- 
ing to  the  provisions  of  this  law  the  German  judge  reaches 
the  bench  only  after  passing  two  rigid  examinations.2  The 
first  examination  must  be  preceded  by  a  three  years'  study 
of  law  in  a  university,  out  of  which  period  three  semesters 
at  least  must  have  been  devoted  to  legal  study  in  a  German 
institution.  The  Gerichtsverfassungsgesetz  does  not  pre- 
scribe the  conditions  of  the  examination  nor  stipulate  the 
particular  subject  upon  which  the  candidate  is  to  be  tested. 


1  Bericht  der  66  Kommission  d.  Reichstags  (Drucks.  d.  Reichstags,  9  Leg. 
Per.  5  Sess.  Nr.  240). 

*GVG.  §  2,  Cl.  i.      Attorneys  must  also  pass  these  examinations  before 
they  are  admitted  to  practice.     Of  course  the  passing  of  the  examinations 
determines  merely  the  question  of  eligibility.    It  creates  no  claim  to  the 
office  of  judge  as  of  right, 
o 


194  THE  GERMAN  EMPIRE 

These  matters  are  left  to  the  legislation  of  each  individual 
State.1 

Between  the  first  and  second  examinations  at  least  three 
years  must  intervene.  This  period  is  to  be  spent  in  service  at 
court,  with  an  attorney,  and,  if  so  desired,  with  the  Public 
Solicitor.  Such  service  is  not  optional  with  the  candidate. 
It  is  compulsory.  It  will  be  at  once  apparent  that  an  embar- 
rassing situation  might  arise  for  an  ambitious  young  "jurist," 
who,  however  zealous  he  might  be,  could  find  no  attorney 
disposed  to  set  him  at  work.  This  point  was  brought  up  by 
representatives  of  the  Bundesral  in  the  debate  over  the  draft 
of  the  proposed  Gerichlsverfassungsgesetz.  These  gentle- 
men declared  that  the  provisions  cf  the  law  could  not  be 
carried  out  with  any  degree  of  certainty  owing  to  the  fact  that 
there  was  no  compulsory  legislation  attached  which  would 
force  the  attorney  to  take  the  embryo  lawyer  as  his  assistant. 
It  was  proposed,  therefore,  by  the  representatives  of  the  Bund- 
esrai  that  service  with  an  attorney  should  not  be  required 
of  the  candidate,  but  should  be  optional.  This  proposition 
was  rejected  by  both  the  Reichstagskommission  and  the 
Reichstag.  The  awkwardness  of  the  situation  has  been 
relieved,  however,  by  incorporating  into  the  law  regulating 

1  In  Prussia  the  law  provides  that  the  first  examination  shall  take  place 
before  a  commission  of  the  Oberlandesgericht  in  Konigsberg,  Berlin,  Stettin, 
Breslau,  Naumburg,  Kiel,  Celle,  Cassel,  or  Coin.  The  subject-matter 
covers  both  public  and  private  law,  as  well  as  the  general  principles  of  politi- 
cal science.  The  examination  also  aims  to  test  the  positive  knowledge 
of  the  applicant,  his  insight  into  the  nature  and  historical  development  of 
legal  relations,  as  well  as  to  determine  whether  the  candidate,  on  the  whole, 
possesses  that  general  legal  and  political  training  requisite  in  his  future 
profession.  In  Prussia,  one  who  has  passed  the  first  examination  is  appointed 
"  Rejerendar"  by  the  president  of  the  Oberlandesgericht  in  whose  district 
he  is  to  be  employed,  and,  since  his  position  is  now  an  official  one,  the  oath 
is  administered.  One  who  has  passed  the  second  examination  is  known 
as  an  "Assessor."  On  the  training  of  the  Rejerendar  see  Daubenspeck, 
Der  juristiche  Vorbereitungsdienst  in  Preussen,  Berlin,  1900. 


THE  JUDICIAL  ORGANIZATION  OF  THE   EMPIRE       195 

matters  pertaining  to  attorneys  —  the  Rechtsanwaltsordnung 
of  July  i,  1878  —  a  section  which  declares  that  an  attorney 
is  bound  to  furnish  opportunity  for  practical  work,  as  well 
as  guidance,  to  "jurists"  who  are  engaged  in  their  pre- 
paratory service.1 

It  has  been  remarked  that  the  Gerichtsverjassungsgesetz 
determines  only  the  minimal  requirements  for  eligibility  to 
the  judicial  office.  While  no  State,  by  its  legislation,  may 
demand  of  its  candidates  less  than  the  law  of  the  Empire  lays 
down  as  the  minimum,  any  State  may  demand  more,  and  as 
much  more  as  it  pleases.  Each  State  may  increase  the  length 
of  time  to  be  spent  in  university  study  prior  to  the  first  ex- 
amination, or  the  period  to  be  passed  in  sendee  preparatory 
to  the  second.2  Prussia,  for  example,  requires  an  inter- 
vening period  of  jour  years  between  the  first  examination  and 
the  second,  this  time  to  be  spent  in  service  connected  with 
the  courts,  with  an  attorney  and  with  the  attorney  of  the 
State.  The  work  of  the  Refer endar  is  to  be  so  distributed 
that  he  shall  gain  an  insight  into  the  operation  of  all  branches 
of  judicial  activity,  and  such  a  practical  facility  therein  as  may 
be  requisite  for  the  independent  and  efficient  administration 
of  the  office  to  which  he  is  looking  forward.3 

1  Rechtsanwaltsordnung,  §  40.  See  comments  on  this  ordinance  by 
Sydow,  4th  edition,  Berlin,  1900.  See  also  Volk,  Die  Rechtsanwaltsord.  fur 
d.  D.  Reich.  Nordlingen,  1878. 

-  But  no  State  may  require  a  greater  number  of  examinations  than  two. 
Struckmann  and  Koch,  Komm.  z-  Civilproz-Ord.  II.  p.  479,  note  7. 

3  The  employment  of  the  Rejerendar  in  Prussia  is  as  follows :  9  months' 
semce  with  an  Amtsgericht  having  not  more  than  3  judges,  i  year  in  the 
Landgericht,  4  months  with  the  attorney  for  the  State,  6  months  with  a 
lawyer  and  notary,  9  months  in  an  Amtsgericht  and  6  months  in  an  Ober- 
landesgericht.  Rejerendare  who,  by  their  conduct,  prove  themselves  un- 
worthy, or  who  do  not  make  proper  progress  in  their  training,  may  be  dis- 
missed from  service  by  the  minister,  without  further  procedure,  after  the 
chairman  of  the  Board  of  Provincial  Service  has  been  heard.  See  §  84, 
Law  of  21  July,  1852  (CS.  p.  465). 


196  THE  GERMAN  EMPIRE 

The  time  devoted  to  preparation  in  one  State  of  the  Empire 
may  be  counted  in  every  other  State,  whether  it  be  spent  in 
university  study  looking  toward  the  first  examination  or 
in  service  with  a  view  to  the  second  examination.  Further, 
he  who  has  passed  the  first  examination  in  one  State  may  be 
admitted  in  every  other  State  to  the  intermediate  service  in 
anticipation  of  the  second  examination  and,  when  that  ser- 
vice is  fulfilled,  to  the  examination  itself.1  There  is  no  com- 
pulsion, however,  upon  one  State  to  give  credit  for  the  period 
of  service  or  study  spent  in  another.  The  wording  of  the 
law  is  "may,"  not  "shall."  The  Gerichtsverjassungsgesetz 
merely  empowers  the  Administration  of  Justice  in  any  State 
to  admit  the  validity  and  sufficiency  of  the  work  done,  and 
examinations  held,  in  other  States.  As  a  matter  of  fact, 
several  States  make  the  passing  of  the  examinations  within 
their  own  territory  an  absolute  condition  to  the  assumption 
of  the  judicial  office.  A  proposition  to  the  effect  that  there 
should  be  compulsory  reciprocity  between  the  States  in  this 
respect  was  rejected  by  the  Commission  of  the  Reichstag 
on  the  ground  that,  owing  to  the  lack  of  a  uniform  law 
regulating  the  whole  subject  of  examinations,  there  could  be 
no  adequate  guarantee  that  the  examinations  required  by  the 
different  States  would  be  of  equal  value.  Accordingly,  the 
recognition  by  one  State  of  the  examinations  held  in  another, 
and  the  estimate  to  be  put  upon  the  preparatory  service  per- 
formed there,  lie  wholly  within  the  discretion  of  the  State 
Administration  of  Justice.2 


1  GVG.  §  3.   Attempts  toward  securing  a  uniform  system  of  examina- 
tions in  all  the  States,  made  in  the  Reichstag  of  21  May,  1878  (see  Sten. 
Ber.  p.  1476),  and  in  the  commission  appointed  to  draft  the  new  GVG.  (see 
Kom.  Ber.  d.  RTK.  von  1898,  pp.  2  ff.),  were  without  result.      See   also 
Schmidt,  Lehrb.  §  39. 

2  See  Struckmann  und  Koch,  p.  480,  notes  2  and  3  to  §  3,  GVG. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       197 

Every  regular  public  teacher  of  law  in  a  German  univer- 
sity is  eligible  to  the  judicial  office.1  In  other  words,  the  in- 
stallation of  a  man  as  full  professor  of  law  in  a  German 
university  is  regarded  as  equivalent  to  the  required  prepara- 
tion and  examination.2  Moreover,  "  whoever  has  acquired  eli- 
gibility to  the  judicial  office  in  one  of  the  States  is  also  eligible 
to  every  judicial  office  within  the  German  Empire,  so  far  as 
the  law  (i.e.  the  imperial  Gerichtsverjassungsgesetz)  makes 
no  exception." 3  An  important  doctrine  is  here  laid  down. 
In  some  of  the  States,  notably  Prussia,4  promotion  to  the 
higher  positions  on  the  bench  was  made  contingent  on  certain 
conditions :  a  specified  length  of  service  in  the  lower  courts, 
the  attainment  of  a  certain  age,  the  passing  of  special  examina- 
tions, etc.  All  State  laws  of  this  nature  are  wiped  out  by  the 
imperial  legislation  which  declares  that  a  man  eligible  in  one 
State  to  the  judicial  office  is  eligible  to  every  judicial  office 
within  the  German  Empire.  The  Gerichtsverjassungs- 
gesetz  has  made  a  single  exception.  In  addition  to  his 
having  attained  eligibility  to  the  judicial  office  in  one  of  the 
States  a  judge  of  the  Reichsgericht  must  have  completed  the 
thirty-fifth  year  of  his  age.5 

Two  general  principles  are  laid  down  by  law  for  the  avowed 
purpose  of  securing  the  independence  of  the  judiciary :  (i)  the 
judicial  power  shall  be  exercised  only  by  courts,  and  (2)  these 


1  GVG.  §  4.     Compare  also  §  138,  5/PO. 

2  "Ausserordentliche   Projessoren"   and   " Privatdozenten "  do  not   come 
within  the  provisions  of  the  law. 

3  GVG.  §  5.     There  is  no  contradiction  here  to  what  has  been  discussed 
in  the  text  with  reference  to  crediting  work  done  in  another  State.     While 
no  State  is  compelled  to  declare  a  man  eligible  on  the  basis  of  work  done 
elsewhere,  yet  when  one  State  has  pronounced  a  man  eligible,  no  other  State 
can  question  its  action. 

*  Law  of  12  March,  1869  (Preuss.  Gesetzsamml.  482),  §§  2,  3,  and  5. 
1  GVG.  §  127,  Cl.  2. 


198  THE  GERMAN   EMPIRE 

courts  shall  be  subject  only  to  the  law.1  As  to  the  signifi- 
cance of  these  clauses  in  the  law,  the  Motiven  say : 2  — 

"  The  assignment  of  the  jurisdiction  to  courts,  by  imperial 
legislation,  has,  over  against  the  existing  rights  of  the  indi- 
vidual States,  a  negative  significance  in  two  directions :  first, 
the  meagre  traces,  still  existing  in  Germany,  of  the  customary 
influence  of  the  Landesherr  upon  the  course  and  decision  of 
suits  at  law,  are  wholly  extinguished,  and,  in  the  second 
place,  the  administration  of  justice  is  fundamentally  sepa- 
rated from  administration  in  general. 

"(i)  That  judicial  supremacy,  by  force  of  which  State 
power  has  to  establish  and  maintain  legal  order  within  its  ter- 
ritory and  administer  legal  authority,  appertains  to  the  sev- 
eral States  themselves.  The  new  legislation  (referring  to  the 
Gerichtsverjassungsgesetz  then  being  debated)  would  make 
no  breach  in  this  judicial  supremacy  so  far  as  exercise  of 
rights  on  the  part  of  the  individual  State  is  concerned.  After 
the  passage  of  this  law,  as  before  it,  the  judicial  power  is  to 
be  referred  back,  for  its  source,  to  the  supreme  authority  of 
the  State.  The  State  courts  must  operate  as  deputized  by, 
and  under  the  authority  of,  the  ruler  of  the  State.  But  every 
active  personal  interference  of  the  sovereign  in  the  admin- 
istration of  justice,  all  '  cabinet  justice '  —  which  political 
science  has  long  regarded  as  unpermissible  and  which,  in 
fact,  has  been  actually  done  away  with  in  almost  the  whole  of 
Germany  —  is  excluded  by  the  declaration  that  the  ordinary 
jurisdiction  is  exercised  by  courts,  and  by  courts  alone.  .  .  . 

"  (2)  In  more  recent  times  it  has  been  a  generally  recognized 

1  GVG.    §  i.     See    Protokott   der   Justizkommission  d.  D,    Reichstags, 
Berlin,  1876,  pp.  73-76;   Kom.Ber.  pp.  7-9;  Sten.  Ber.  2  Leg.  Per.,  2  Sess. 
1874-75,  pp.  275  ff.     Also  Wach,  Handb.  d.  D.  Civilprozessordnung,   I.  p. 
309  H. ;  Schmidt,  Lehrb.  d.  Z>.  CPO.  §  25 ;  Bunsen,  Lehrb.  d.  D.  CPO.  §  2. 

2  Begrilndung  des  Entwurfs  III  (Drucks.  d.  Reichstags,  2  Leg.    Per.,  2 
Sess.  1874-75  zu  No.  6). 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       199 

principle  that  the  judicial  office,  whose  duty  is  the  adminis- 
tration of  law  and  equity,  and  which,  from  its  very  nature,  can 
have  no  authority  above  it  other  than  that  of  the  law,  should 
not  be  administered  by  officials  who,  at  the  same  time,  are 
called  upon  to  exercise  that  kind  of  rule  over  the  citizens 
of  the  State  which  must  have  regard  for  considerations 
of  governmental  policy,  and  who  cannot  be  guaranteed, 
in  like  measure,  that  security  of  position  through  unre- 
movability  from  office,  which  is  desired  in  a  judicial 
official."  1 

Two  or  three  provisions  of  the  Gerichtsverjassungsgesetz 
are  intended  to  secure  the  personal  independence  of  the  ju- 
diciary. In  the  first  place,  the  judges  are  appointed  for  life.2 
With  respect  to  the  members  of  the  Reichsgericht  —  the  only 
one  of  the  regular  courts  which  is  purely  imperial  —  the  ap- 
pointments are  made  by  the  Kaiser  on  nomination  of  the 
Bundesrat.3  The  matter  of  the  appointment  of  the  judges 
of  the  other  courts,  as  well  as  the  determination  of  the  mode 
of  installation,  is  left  to  the  constitutional  law  of  the  several 
States.4  Moreover,  the  judges  receive  a  fixed  salary,  that  is 
to  say,  a  permanent,  irrevocable  salary,  which  cannot  be 
subjected  to  arbitrary  withdrawal  or  diminution.  The 
receiving  of  fees  is  absolutely  barred.5  If,  however,  the  judge 
is  permitted  to  hold  another  office  at  the  same  time,  in  ad- 
dition to  the  judgeship,  the  receiving  of  some  form  of  remu- 
neration other  than  that  of  the  fixed  salary  attached  to  the 
judicial  office  is  not  excluded.  Whether,  and  to  what  extent, 
a  judge  may  assume  such  a  "Nebenamt,"  is,  with  respect  to 

1  Compare  Von  Ronne,  op.  cit.  p.  15;    Von   Ronne-Zorn,    op.  cit.  §12, 
III.  A,  §  43,  I.  i ;  Zorn,  op.  cit.  p.  412. 

2  GVG.  §  6.  s  Ibid.  §  127,  Cl.  i. 

4  In  Prussia  and  Bavaria,  e.g.,  it  is  provided  by  the  Ausjiihrunggesetz 
z.  GVG.,  that  all  judges  shall  be  appointed  by  the  king. 
8  GVG.  §  7. 


200  THE  GERMAN  EMPIRE 

the  members  of  all  courts  other  than  the  Reichsgericht,  a 
matter  for  the  State  legislation  to  decide.  So  far  as  the  judges 
of  the  Reichsgericht  are  concerned,  the  matter  is  settled  by  the 
Reichsbeamtengesetz  of  March  31,  1873,  §  Io":  "No  im- 
perial official  shall,  without  the  previous  consent  of  the 
highest  imperial  authority,  assume  an  additional  office  or 
additional  employment  to  which  a  continuous  remuneration 
is  attached,  or  carry  on  a  business.  The  same  consent  is 
required  for  the  entry  of  an  imperial  official  into  the  directo- 
rate, or  into  the  administration  or  supervisory  council  of 
any  company  operated  for  gain.  Such  consent  will  not  be 
granted,  however,  in  so  far  as  the  position  is  directly  or  in- 
directly bound  up  with  a  reward.  A  concession  once  granted 
may  be  revoked  at  any  tune." l 

Perhaps  the  strongest  guarantee  for  the  personal  inde- 
pendence of  the  judiciary  is  found  in  that  section  of  the  law 
which  declares  that  "no  judge  shall,  against  his  will,  be  per- 
manently or  temporarily  removed  from  office,  transferred  to 
another  place,  or  retired,  except  by  judicial  decision  and  on 
grounds  and  according  to  forms  prescribed  by  law." 2  If  the 
State  Administration  of  Justice,  however,  changes  the  or- 
ganization of  the  courts,  or  defines  anew  the  districts  of  the 
same,  it  may  also  provide  for  such  involuntary  transfers 

1  Reichsbeamtengesetz,     §     16     (RGBl.   p.    61).      See     Gesetzsammlung 
fur  d.  D.  Reich.  4  Aufl.  I.  342.     Compare  for  Prussia,  Kab.  Ord.  13  July, 
1839  (GS.  p.  235);  Law  of  30  April,  1856  (GS.  p.  297);  AG.  z.  GVG.  24 
April,  1878,  §  ii ;  Gewerbe-Ord.,  17  January,  1854  (GS.  p.  41),  §  19 ;:  Verord. 
fur  d.  neuen  Landestette,  23  September,  1867  (GS.   p.    1610);  Reichsgew.- 
Ord.  of  26  July,  1900  (RGBl.  p.  871),  §  12,  Cl.  2;  Law  of  10  June,  1874 
(GS.  p.  244) ;  Turnau,  op.  cit.  I.  pp.  42  ff . ;  Von  Ronne-Zorn,  op.  cit.  §  43, 

n. 

2  GVG.  §  8,  Cl.  i.     This  section  is  drawn  in  imitation  of  Art.  87.  Cls.  a 
and  3 ,  of  the  Preuss.  Verf .  Urkunden,  and  contains  the  principles  which  the 
German  jurists  designate  as  the  "  Unabsetzbareit  "  and  "  Unversetzbarkeit  "  of 
the  judiciary. 


THE  JUDICIAL  ORGANIZATION   OF  THE   EMPIRE       2OI 

as  the  reorganization  necessitates,  or  even  for  involuntary 
removals  under  grant  of  full  salary.1 

The  conditions  of  the  law  requiring  that  removals,  transfers, 
or  retirements  shall  be  made  only  by  judicial  decision,  on 
legal  grounds  and  according  to  legal  forms,  are  not  met 
when  such  action  is  based  on  ordinances  of  the  ruler,  or  on 
decrees  of  the  State  Administration  of  Justice.  There  must 
be  actual  legislation,  imperial  or  State,  behind  the  transaction. 
On  the  other  hand,  it  is  apparent  that  such  a  matter  should 
not  be  left  exclusively  to  the  discretion  or  good  pleasure  of  the 
judiciary.  Hence,  in  those  States  where  no  law  on  the  subject 
exists,  the  judiciary  cannot  take  the  matter  into  its  own 
hands.  It  would  seem  that  State  legislation  must  step  in.2 
This  section  of  the  Gerichtsverjassungsgesetz  covers  cases  of 
removal  as  a  disciplinary  measure  (Enthebung),  as  well  as 
mere  removals  with  no  disciplinary  character  (Entjernung). 
The  arbitrary  ousting  of  a  judge  from  his  office  by  an  ad- 
ministrative authority  on  the  vague  ground  that  "the  interests 
of  the  service"  require  it  —  which,  as  Laband  observes, 
means  "according  to  the  pleasure  of  the  administrative 

1  GVG.   §  8,  Cl.  2.     On  motion  of  the  chairman   of  the  Reichstags- 
Kommission  of  1875,  it  was  expressly  declared  that  those  provisions  in  the 
laws  of  the  several  States  whereby  a  judge  on  reaching  a  certain  age  may  be 
pensioned  on  full  or  partial  salary,  should  remain  undisturbed. 

2  This  is  the  view  of  Struckmann  and  Koch,  note  5  to  §  8,  GVG.   Laband, 
however,  III.  p.  454,  note  5,  says :  "  So  lange  in einem  Bundesstaat  ein  solches 
Gesetz  nicht  erlassen  ist,  bleibt  die  Geltung  des  §  8  suspendirt."    §  13, 
Einjuhrunggesetz,  GVG..  says:    "Die  Bestimmungen  iiber  das  Richteramt 
im  §  8  des  GVG.  treten  in   denjenigen  Staaten,  in  welchen  Vorschriften 
fur  die  richterliche  Entscheidung  uber  die  Enthebung  eines  Richters  vom 
Amte  oder  iiber  die  Versetzung  eines  Richters  an  eine  andere  Stelle  oder  in 
Ruhestand  nicht  bestehen,  nur  gleichzeitig  mit  der  landgesetzlichen  Rege- 
lung  der  Disciplinarverhaltnisse  der  Richter  in  Wirksamkeit."     This  section 
owes  its  existence  to  the  Reichstagskommission  of  1875  and  was  occasioned 
by  the  arrangements  in  some  German  States,  especially  Bayern,  where  no 
regular  disciplinary  process  before  judicial  authorities  exists. 


2O2  THE  GERMAN   EMPIRE 

board,"  is  made  impossible.  No  mere  considerations  of 
policy  can  be  set  up  as  a  justification  for  such  a  removal 
or  retirement.  While  any  change  may  be  made  with  the  con- 
sent of  the  judge,  none  can  be  made  against  it,  save  by  or- 
derly judicial  process,  based  on  law  and  not  on  ordinance.1 

The  judges  are  protected,  therefore,  from  the  arbitrary 
action  of  the  State  Administration  of  Justice,  and,  in  all 
cases  of  disciplinary  prosecution,  have  a  claim  to  a  legal 
hearing  and  to  a  judicial  decision.  No  norm  is  laid  down  by 
imperial  legislation,  however,  with  respect  to  the  infliction  of 
disciplinary  penalties,  nor  is  there  any  uniform  regulation  of 
the  disciplinary  law  touching  judicial  officers.  Not  even 
the  most  general  principles  are  laid  down  by  imperial  legis- 
lation determining  the  grounds  on  which  suspension,  re- 
moval, or  dismissal  may  be  permissible,  establishing  the  rules 
of  disciplinary  procedure  or  fixing  the  constitution  and  com- 
position of  the  disciplinary  boards.  In  all  these  matters  the 
autonomy  of  the  several  States  is  practically  unrestricted, 
being  bound  only  by  the  formal  limitation  that  action  shall 
follow  the  way  of  legislation,  not  that  of  mere  arbitrary 
decree  or  ordinance.2 

The  members  of  the  Reichsgericht  occupy  a  different  posi- 
tion from  that  held  by  the  other  judges,  so  far  as  their  rela- 
tion to  the  disciplinary  laws  of  the  States  is  concerned.  A 
temporary  suspension  from  office  takes  place,  according  to 
law,  when  a  member  of  the  Reichsgericht  is  arrested  pending 
investigation,  and  continues  during  the  period  of  such  deten- 
tion. Moreover,  a  member  may  be  temporarily  suspended 
from  office  by  the  full  bench  of  the  Reichsgericht,  after  hearing 
the  attorney  for  the  Empire,  if  trial  has  been  begun  against 

1  The  only  exception  to  this  rule  has  already  been  mentioned  in  a  preced- 
ing paragraph. 

z  See  Laband,  III.  pp.  454  ff. 


THE  JUDICIAL  ORGANIZATION  OF  THE  EMPIRE       203 

such  member  on  a  criminal  charge.1  The  removal  of  a 
member,  together  with  loss  of  salary,  may  be  effected  by  a 
pronouncement  of  the  full  bench  of  the  Reichsgericht,  the 
attorney  for  the  Empire  having  been  heard,  if  such  member 
has  been  sentenced  to  punishment  for  a  disgraceful  act,  or  to 
imprisonment  for  more  than  a  year.2  If  a  member  of  the 
Reichsgericht,  because  of  bodily  infirmity  or  weakness  of 
physical  or  mental  power,  becomes  permanently  incapacitated 
for  office,  but  nevertheless  does  not  apply  for  a  retirement,  nor, 
though  requested  to  do  so,  sees  fit  to  comply  within  a  speci- 
fied period,  such  member  may,  after  both  he  and  the  attor- 
ney for  the  Empire  have  had  a  hearing,  be  retired  by  the 
action  of  the  full  bench  of  the  Reichsgericht.3 

1  GVG.  §  129.     That  is,  if  the   member  is  charged   with   a   crime  or 
misdemeanor,  not  merely  with  a  trespass.     Such  a  temporary  suspension 
does  not  involve  loss  of  salary. 

2  Ibid.  §  128. 

3  Ibid.    §§    130,   131.      In  case   of   retirement,   the   member  receives   a 
certain  portion  of  his  salary  as  yearly  pension.     This  pension,  up  to  the  com- 
pletion of  the  tenth  year  of  service,  amounts  to  f$  of  his  salary,  and  in- 
creases at  the  rate  of  J$  each  succeeding  year  up  to  the  completion  of  the 
fiftieth  year  of  service.     The  period  of  service  is  reckoned  from  the  day  on 
which  he  entered  the  public  service,  whether  of  the  Empire,  of  a  State  or 
Commune,  or  in  the  State,  as  attorney. 


CHAPTER  X 

ALSACE-LORRAINE    AND    ITS    RELATION   TO    THE 

EMPIRE 

IN  the  Peace  Preliminaries  between  the  German  Empire  and 
France,  on  the  26  February,  1871,  the  cession  of  Alsace- 
Lorraine  definitely  fixed  the  international  status  of  that 
territory  and  determined  its  relation  to  all  other  States,  in- 
cluding France.  Article  i,  Cl.  i,  of  the  Peace  Preliminaries 
declares  that  "France  renounces,  in  favor  of  the  German 
Empire,  all  her  rights  and  title  to  the  territory  lying  east  of  a 
boundary  line  hereafter  designated."  Clause  2  fixes  the  lines 
referred  to,  while  Cl.  3  adds:  "The  German  Empire  shall 
possess  this  territory  forever,  in  full  sovereignty  and  with  all 
the  rights  of  ownership."  By  this  act  all  the  interests  of 
France  in  Alsace-Lorraine  passed  to  Germany,  and  the  actual 
possession  of  the  territory  effected  by  conquest  in  August, 
1870,  was  formally  recognized. 

The  settlement  of  the  question  as  to  the  status  of  Alsace- 
Lorraine  with  respect  to  international  law  served  merely  to 
raise  the  question  as  to  its  status  with  respect  to  constitutional 
law.  The  terms  of  the  Peace  Preliminaries  determined  the 
relations  of  the  territory  to  third  Powers,  but  it  did  not,  and 
could  not,  determine  its  relations  to  the  German  Empire. 
Here  was  a  problem  which  touched  the  internal  organization 
of  the  Empire.  By  the  fortunes  of  war,  Germany  found  her- 
self possessed  —  one  might  well  say,  repossessed  —  of  a 
considerable  territory,  for  the  disposition  and  administration 
of  which  the  Imperial  Constitution  made  no  provision.  The 
adjustment  of  the  new  fact  to  the  theory  of  the  Constitution, 

204 


ALSACE-LORRAINE:   ITS  RELATION  TO  THE  EMPIRE      2O5 

the  mortising  of  the  new  acquisition  into  the  old  order  of 
things,  was  the  task  laid  upon  German  jurists  and  statesmen. 
In  the  solution  of  the  problem,  three  ways  were  open :  to 
erect  the  new  territory  into  a  State  with  powers  and  rights 
equal  to  those  possessed  by  the  other  federated  States;  to 
incorporate  Alsace-Lorraine  into  the  territory  of  one  of  the 
existing  States ;  or  to  hold  it  as  a  pure  imperial  territory  —  not 
a  State,  but  a  territory  under  the  sovereign  control  of  the 
Empire  and  administered  by  organs  of  the  imperial  govern- 
ment, wholly  independent  of  any  and  all  of  the  federated 
States  as  such.1  At  no  time  was  the  idea  held,  at  least  to  any 
extent,  of  making  Alsace-Lorraine  the  twenty-sixth  State 
in  the  Union.  Too  many  political  objections  stood  in  the 
way,  though  such  a  proceeding  could  have  been  carried  out 
by  means  of  a  constitutional  amendment.  The  third  solu- 
tion of  the  problem  seemed  to  present  the  fewest  number  of 
difficulties,  —  the  retention  of  the  territorial  status,  under  the 
immediate  control  of  the  Empire.  It  was  therefore  chosen. 
For  such  a  relationship,  however,  the  Imperial  Constitution 
made  no  provision.  It  recognized  no  part  of  the  Empire 
which  was  immediately  subject  to  the  central  authority  or 
which  was  to  be  looked  upon  as  simply  the  object  of  imperial 
powers.  The  Constitution,  on  the  contrary,  assumed  that 
between  the  individual  territories  with  their  people  and  the 
imperial  power,  a  State  power  was  interposed,  and  that  each 
State  into  which  the  territory  of  the  Empire  or  its  population 
was  organized,  was  a  subject  of  rights,  a  member  of  the  Em- 
pire, and  as  such  had  a  share  in  the  Empire  itself.2  It  is 
evident  that  the  theory  upon  which  the  federal  organization 
of  the  German  Empire  is  builded  —  the  theory  of  mediate 
government  through  the  States  —  could  find  no  application  to 

1  Hanel,  Staatsr.  I.  p.  824;   Anschxitz,  in  Hoh-Kohler,  II.  p.  559. 
*  Laband,  II.  p.  198. 


206  THE  GERMAN  EMPIRE 

Alsace-Lorraine  unless  that  territory  should  be  erected  into  a 
State.  But  where  a  territory  is  governed  wholly  and  exclu- 
sively by  the  central  authority;  where  self-government  and 
autonomy,  in  the  sense  in  which  these  words  apply  to  federated 
States,  are  wanting;  where  the  laws  are  not  laws  by  the  ter- 
ritory, but  laws  by  the  central  government  for  the  territory, 
the  federal  idea  fails.  This  is  precisely  the  situation  in 
Alsace-Lorraine.  The  relation  between  the  Empire  and  Al- 
sace-Lorraine is  not  that  of  a  federal  government  to  one  of 
its  member  States,  but  that  of  a  unitary  State  toward  one  of 
its  provinces.  And  this  must  always  be  the  relation  between 
a  federal  State  and  its  territories.  True,  a  territory  may  be 
granted  large  powers  of  self-government,  but,  unlike  the  pow- 
ers of  self-government  exercised  by  a  State  under  a  federal 
form  of  government,  these  powers  are  not  original,  but  de- 
rivative. The  federal  government  gave  and  the  federal  gov- 
ernment may  take  away. 

The  German  jurists  and  statesmen  harbored  no  fond 
delusions  with  respect  to  the  newly  acquired  territory  and 
the  Imperial  Constitution.  The  Constitution  did  not  extend 
to  these  annexed  districts  ex  proprio  vigore.  It  had  no 
footing  or  operation  there,  until  it  was  carried  there  ex- 
pressly by  imperial  legislation.  This  fact  is  clearly  recog- 
nized in  the  "Law  concerning  the  Union  of  Alsace-Lorraine 
with  the  German  Empire,"  of  9  June,  iSyi.1  This  law,  after 
declaring  that  the  land  acquired  from  France  by  cession  was 
forever  united  to  the  German  Empire,  fixed  a  date  on  .which 
the  Imperial  Constitution  should  go  into  effect  there.  It 
says:  "The  Constitution  of  the  German  Empire  shall  go  into 
effect  in  Alsace-Lorraine  on  i  January,  i873.2  By  order  of 

1  RGBl.  p.  212. 

*  Afterward  extended  to  i  January,  1874,  by  the  Law  of  20  June,  1872 
(RGBl.  p.  208). 


ALSACE-LORRAINE:   ITS   RELATION  TO  THE  EMPIRE      207 

the  Emperor,  with  the  consent  of  the  Bundesrat,  individual 
parts  of  the  Constitution  may  be  introduced  earlier.1  The 
amendments  and  additions  which  may  be  necessary  require 
the  consent  of  the  Reichstag.  Article  3  of  the  Imperial  Con- 
stitution shall  go  into  effect  at  once."  2  In  other  words,  "the 
Constitution  was  made  for  the  States,  not  for  the  territories," 
and  it  enters  the  territories  only  when  carried  there  by 
federal  law.  Under  the  German  system  of  federal  govern- 
ment, the  extension  of  the  Constitution,  as  an  Imperial  Con- 
stitution, into  Alsace-Lorraine,  would  be  illogical  in  the 
extreme,  unless  the  territory  were  erected  into  a  State  or  in- 
corporated in  the  territory  of  one  of  the  States  already  exist- 
ent. The  introduction  of  the  Imperial  Constitution  into 
Alsace-Lorraine  took  the  form  of  an  imperial  law.  This 
law  can  be  amended  or  repealed  at  any  time  without  the 
consent  of  Alsace-Lorraine.3 

The  introduction  of  the  Imperial  Constitution  into  Alsace- 
Lorraine  did  not  simplify  the  relations  of  that  territory, 
either  with  respect  to  the  Empire  or  to  the  several  States 
of  the  Union.  Many  difficulties  have  arisen  in  determining 
the  exact  position  of  Alsace-Lorraine  and  in  administering 
the  territory.  A  federal  State  which  recognizes  no  part  of 
its  territory  as  existing  in  any  form  other  than  that  of  one 
of  the  federated  States,  acquires  territory  which  is  not  a 
State  at  the  time  of  its  acquisition  and  which  the  central 
government  has  no  intention  of  erecting  into  a  State.  The 
pivotal  theory  of  the  German  federal  system  demands  organ- 
ization into  States  which  shall  serve  as  the  medium  through 
which  the  central  government  acts.  Nevertheless,  the  new 
territory  is  administered  and  governed  immediately  by  the 

1  See  Triepel,  Quettensammlung,  p.  in,  note  5. 

2  Law  of  June  9,  1871  (RGBl.  212),  §  2. 

3  See  in  this  connection  Hanel,  Staatsr.  p.  834. 


208  THE  GERMAN  EMPIRE 

federal  government;  the  Constitution,  intended  only  for 
"States,"  extends  there,  and  in  many  respects  the  annexed 
territory  is  treated  as  if  it  were  actually  a  "member  of  the 
Bund"  As  a  matter  of  fact,  of  course,  Alsace-Lorraine 
is  not  a  State,  nor  is  it,  like  the  Territories  in  the  United 
States,  a  "State  in  the  making."  "Neither  with  respect 
to  the  Empire,  nor  with  respect  to  foreign  States,  is  Alsace- 
Lorraine  an  independent  subject  of  sovereign  rights,  with 
constitutional  powers  and  obligations.  It  is  logically  no 
State,  but  a  part  (Bestandteil),  an  administrative  district, 
of  the  Empire.  .  .  .  The  contrast  between  the  territory 
and  the  member  States  of  the  Empire  coincides  exactly  with 
the  contrast  between  a  decentralized  unitary  State  and  a 
federal  State." ' 

A  glance  at  the  historical  development  of  the  organization 
of  this  acquired  territory  will  serve  to  make  its  position  in 
the  Empire  more  clear.  In  considering  the  evolution  of  its 
territorial  government  five  periods  may  be  distinguished, 
each  of  which  must  be  briefly  discussed. 

i.  The  period  of  military  dictatorship  from  August,  1870, 
to  June,  1871.  This  period  must  also  be  subdivided  into 
two  minor  ones:  (a)  from  the  date  of  occupancy  by  the 
German  troops,  14  August,  1870,  to  the  cession  of  the  territory 
by  France  to  the  German  government,  26  February,  1871; 
(&)  from  26  February,  1871,  to  the  Law  of  Annexation, 
9  June,  1871,  which  went  into  effect  28  June,  1871. 

(a)  During  this  time  the  government  of  Alsace-Lorraine 
was  administered  by  a  military  governor-general,  appointed 
by  the  king  of  Prussia,  and  acting,  not  in  accordance  with 
the  principles  of  the  North  German  Constitution,  but  with 
the  principles  of  international  law  touching  such  cases. 
Alsace-Lorraine  did  not  cease  to  be  French  territory  through 
1  Laband,  II.  p.  199. 


ALSACE-LORRAINE:   ITS   RELATION  TO  THE  EMPIRE      2OQ 

the  mere  act  of  occupation  by  hostile  troops  and  through 
the  assumption  of  military  control  by  the  commanding 
officer  of  those  troops.  The  power  of  France  was  suspended 
in  the  territory  and  French  legislation  for  the  territory 
was  excluded,  in  the  districts  actually  occupied.  In  such 
districts,  the  commander-in-chief  of  the  German  army,  or 
his  appointee,  had  the  right  to  exercise  the  authority  usually 
exercised  by  the  State,  subject  only  to  the  limitations  fixed 
by  international  usage.1  Nor  was  the  occupied  territory, 
during  the  war,  subjected  to  the  German  State,  the  Empire, 
which  was  erected  only  on  i  January,  1871.  It  was  simply 
in  the  military  power  of  the  allied  German  forces.  "In 
the  invested  districts,  therefore,  the  king  of  Prussia,  as 
commander-in-chief  of  the  German  forces,  exercised  author- 
ity based  not  on  constitutional  law,  but  on  international 
law.  So  far  as  the  government  of  this  French  territory 
was  concerned,  he  did  not  exercise  the  power  of  the  German 
State,  but  of  the  French  State.  Hence  the  ordinances 
issued  during  the  occupation  are  to  be  regarded,  not  as 
acts  of  the  German  Empire,  but  as  acts  of  the  German  com- 
mander-in-chief, carried  out  in  place  of  the  French  sover- 
eignty at  that  time  suspended."  2 

(b)  On  the  conclusion  of  peace  between  Germany  and 
France,  no  immediate  change  took  place  in  the  govern- 
mental organization  of  the  ceded  districts.  The  govern- 
ment of  Alsace-Lorraine  was,  however,  put  upon  a  different 
legal  foundation.  It  no  longer  rested  upon  a  military  basis, 
but  upon  a  legal  basis  created  by  the  transfer  of  the  territory, 

1  The  occupation,  therefore,  did  not,  ipso  facto,  annul  the  French  laws  in 
force,  nor  dissolve  the   general  organization  of  the  territory  occupied.    It 
did  not  destroy  private  obligations.     A  new  power  took  the  place  of  the 
French  State,  and  carried  on  the  government  as  already  organized,  so  far 
as  it  could  be  done  consistently  with  the  conditions. 

2  Laband,  II.  p.  237  and  note  2  to  same. 


2IO  THE  GERMAN  EMPIRE 

with  all  rights  and  title  therein,  by  treaty  to  Germany. 
Through  this  treaty  the  status  of  Alsace-Lorraine  with 
respect  to  third  Powers  was  definitely  fixed.  Its  status 
with  respect  to  the  Empire  was  a  matter  of  German  consti- 
tutional law.  By  the  terms  of  the  treaty  Alsace-Lorraine 
did  not  become  a  State,  nor  was  it  even  incorporated  into 
the  German  system  of  States.  Prior  to  the  conclusion  of 
the  treaty  it  had  been  simply  an  integral  part  of  a  unitary 
State.  The  mere  act  of  signing  the  treaty  did  not  give  it  a 
character  which  it  did  not  possess  before.  The  sovereignty 
of  France  was  exchanged  for  the  sovereignty  of  Germany, 
but  Alsace-Lorraine  was  not  raised  thereby  from  a  province  to 
a  State.  The  government  which  had  been  temporarily  set 
up  during  the  period  of  military  occupation,  continued  after 
the  conclusion  of  peace,  until,  on  28  June,  1871,  Alsace- 
Lorraine  became  formally  annexed  to  the  German  Empire 
by  imperial  legislation. 

2.  The  second  period,  from  28  June,  1871,  to  31  December, 
1873,  may  be  termed  the  period  of  imperial  dictatorship,  or 
the  dictatorship  of  the  Kaiser.  The  key  to  this  period  is 
furnished  by  the  Law  of  9  June,  1871,  — -  the  Law  of  Annexa- 
tion. By  the  terms  of  the  Peace  Preliminaries,  26  February, 
1871,  the  full  sovereignty  over  the  ceded  territory,  as  that 
term  is  understood  both  in  international  and  constitutional 
law,  passed  to  the  German  Empire.  The  Peace  Prelimi- 
naries could  not  determine  the  relations  of  the  ceded  territory 
to  the  Empire  except  so  far  as  those  relations  fell  within 
the  scope  of  international  law.  The  Law  of  9  June,  1871, 
did  not  determine  the  position  of  Alsace-Lorraine  in  the 
Empire  in  explicit  terms  which  gave  no  room  for  dispute. 
The  law  is  silent  upon  the  direct  question  of  the  status  of 
the  new  territory  with  respect  to  the  imperial  system.  If,  as 
we  have  seen,  Alsace-Lorraine  was  no  State  prior  to  the 


ALSACE-LORRAINE:   ITS  RELATION  TO  THE  EMPIRE      211 

cession,  it  could  scarcely  be  assumed  that  the  bare  act  of 
cession  gave  to  this  territory,  ipso  facto,  a  constitutional 
character  which  it  did  not  before  possess.  By  the  transfer 
of  sovereignty  from  France  to  Germany,  Alsace-Lorraine 
did  not  become  the  subject  of  new  powers,  but  it  became 
subjected  to  a  new  power,  which  possessed  the  sole  right, 
at  its  own  discretion,  to  determine  what  the  organization  and 
status  of  the  territory  should  be.  It  became  subject  to 
imperial  authority.  Whatever  governmental  powers  are 
exercised  in  Alsace-Lorraine  are  imperial  powers,  rooted 
in  the  sovereignty  of  the  Empire  and  derived  from  it.  In 
this  respect,  Alsace-Lorraine  stands  upon  a  footing  wholly 
different  from  that  upon  which  the  several  States  of  the 
Empire  rest.  The  relation  of  Alsace-Lorraine  to  the  Empire 
after  its  annexation  was  precisely  that  which  it  bore  to 
France  before  annexation.  That  is,  the  relation  was  not 
federal  in  its  nature,  but  unitary.  By  the  Law  of  9  June, 
1871,  Alsace-Lorraine  did  not  become  a  member  of  the 
Empire,  for  the  members  of  the  Empire  are  States,  and  Alsace- 
Lorraine  was  not  a  State.  It  became  possessed  of  none  of 
the  rights  belonging  to  the  several  States  and  growing  out 
of  their  membership  in  the  Empire.  The  fact  that  the 
Law  of  Annexation  fixed  also  a  date  at  which  the  Imperial 
Constitution  should  go  into  effect  in  the  acquired  territory, 
showed  conclusively  that  the  Constitution  did  not  extend  to 
the  annexed  districts  ex  proprio  vigore,  and  that  such  rights 
as  did  exist  were  rights  based  on  law,  not  on  the  Constitution ; 
were  rights  granted,  not  reserved. 

The  first  clause  of  §  3  of  the  Law  of  9  June,  1871, 
declares  the  State-power  in  Alsace-Lorraine  shall  be  exer- 
cised by  the  Kaiser.  Under  this  provision  the  government 
of  Alsace-Lorraine  immediately  took  on  a  strongly  mon- 
archistic  aspect.  The  power,  both  legislative  and  executive, 


212  THE  GERMAN  EMPIRE 

was  concentrated  in  the  hands  of  the  Kaiser.  It  must  be 
borne  in  mind,  however,  that  as  wielder  of  the  State-power  in 
Alsace-Lorraine,  the  Kaiser  was  not  acting  at  all  in  his  own 
name  or  in  his  own  right.  The  power  was  delegated  power, 
and  the  Kaiser  exercised  it  solely  as  an  organ  of  the  Em- 
pire. Alsace-Lorraine  was  imperial  territory,  and  whatever 
authority  was  exercised  there  was  imperial  authority,  carried 
into  effect  by  imperial  organs.  The  Kaiser  is  not  the  ruler 
of  Alsace-Lorraine,  in  the  sense  in  which  he  is  ruler 
of  Prussia,  nor  is  Alsace-Lorraine  in  a  " Personalunion" 
with  the  Prussian  State.1  The  Kaiser  is  simply  an  impe- 
rial organ,  exercising  imperial  power,  in  an  imperial  terri- 
tory. 

In  centralizing  the  legislative  and  administrative  powers 
in  Alsace-Lorraine  in  the  hands  of  the  Kaiser,  the  Law  of 
9  June  placed  certain  limitations  or  checks  upon  its  exercise. 
These  limitations  were  operative  both  in  the  sphere  of  ad- 
ministration and  legislation.  Thus,  for  example,  Cl.  2 
of  §  3  says:  "Up  to  the  time  when  the  Imperial  Constitu- 
tion shall  go  into  effect,  the  Kaiser  shall  be  bound  by  the 
consent  of  the  Bundesrat  in  the  exercise  of  the  legislative 
power,  and  in  the  contracting  of  loans  or  the  assumption  of 
guarantees  for  Alsace  and  Lorraine,  which  shall  involve 
any  burden  upon  the  Empire,  he  shall  be  bound  by  the 
consent  of  the  Reichstag  also."  Moreover,  by  the  provisions 
of  §  4  of  the  law,  "the  ordinances  and  decrees  of  the 
Kaiser  need  for  their  validity  the  counter-signature  of  the 

1  Laband,  II.  p.  203.  "  Elsass-Lothringen  ist  demnach  keine  Monarchic, 
derm  es  hat  keinen  personlichen  Landesherrn,  und  es  ist  ebensowenig  eine 
Republik,  denn  die  Gesammtheit  der  Elsass-Lothringer  ist  nicht  das  Sub- 
ject der  Staatsgewalt.  Es  ist  ein  Bestandteil  oder  Provinz  des  Reiches.  Das 
Subject  der  Staatsgewalt  in  Elsass-Lothringen  ist  das  Reich,  d.  h.  die  Ge- 
sammtheit der  zum  Reich  vereinigten  Staaten  in  ihrer  begrifflichen 
Einheit,  in  ihrer  staatlichen  Personlichkeit."  Ibid,  pp.  203-204. 


ALSACE-LORRAINE:    ITS   RELATION  TO  THE"  EMPIRE      213 

Imperial  Chancellor,  who  assumes  thereby  the  responsibility." 
The  Imperial  Chancellor  became,  through  this  provision, 
the  sole,  supreme  head  of  the  administration  in  the  imperial 
territory  in  all  branches,  and  with  him,  of  course,  the 
Chancery  Office,  with  its  various  departments,  became 
charged  with  the  regulation  of  matters  pertaining  to  the 
territorial  administration. 

By  the  Law  of  30  December,  1871,  §  4,*  a  new  feature 
was  added  to  the  administrative  organization  of  Alsace- 
Lorraine,  in  the  person  of  the  president  (Oberpraesidenf), 
whom  the  law  designates  as  the  "highest  administrative 
authority  in  Alsace-Lorraine,  with  his  official  seat  in  Strass- 
burg."  Section  6  of  the  law  assigned  to  this  president  a  large 
sphere  of  activity  in  the  immediate  administration  of  the 
internal  affairs  of  the  territory,  in  addition  to  which  the 
Imperial  Chancellor  was  "empowered  to  hand  over  to  him, 
wholly  or  in  part,  the  authority  which  was  exercised  by  the 
ministers  under  the  French  laws  still  in  force."  More- 
over, §  5  of  the  law  grants  to  the  president  the  super- 
vision of  the  various  administrative  boards  in  the  territory, 
as  well  as  of  the  officials  subordinate  to  them,  together  with 
the  task  of  seeing  that  the  laws  and  ordinances  are  executed 
and  the  administration  properly  carried  on.  The  president, 
further,  acted  in  the  capacity  of  an  administrative  court 
in  deciding  differences  arising  between  the  boards  sub- 
ordinated to  him  and  in  passing  upon  complaints  and  deci- 
sions of  inferior  administrative  authorities,  or  in  submitting 
such  complaints  or  decisions  to  the  Imperial  Chancellor. 
The  president  had  under  him,  of  course,  such  a  number 
of  counsellors  and  assistants  of  various  sorts  as  the  business 
laid  upon  him  seemed  to  require. 

As  to  the  legal  position  of  the  president,  Laband  says: 
1  GBl.  fur  El.-Loth.  1872,  No.  2,  p.  49. 


214  THE  GERMAN   EMPIRE 

"He  was  occupying  the  constitutional  position  held  by  a 
minister;  he  was  not  in  a  constitutional  sense  responsible; 
he  had  no  power  to  act  as  the  representative  of  the  Imperial 
Chancellor;  he  could  countersign  no  ordinances  of  the 
Emperor;  he  was  bound  to  obey  the  instructions  of  the 
Imperial  Chancellor  relating  to  the  administrative  service, 
and  stood  under  his  supervision.  The  law,  §  4,  calls 
him  the  highest  administrative  authority  in  Alsace-Lorraine. 
He  was  not,  however,  the  highest  administrative  authority  of 
Alsace-Lorraine  in  any  single  department,  but  was  sub- 
ordinate, in  every  relation,  to  the  Imperial  Chancellor, 
as  the  actual  head  of  the  administration.  .  .  .  He  was  a 
higher  instance  for  the  whole  internal  administration;  he 
was  competent  for  almost  every  ordinance  which  belonged, 
under  the  existing  law,  to  the  jurisdiction  of  the  Ministry ; 
upon  him  was  laid  the  fixing  of  the  territorial  budget,  the 
preparation  of  the  drafts  of  laws  and  ordinances,  the  com- 
munication of  instructions  and  service-notices  to  the  district 
presidents  and  other  district  authorities.  But  he  was 
intrusted  with  the  greater  part  of  these  functions  only  by 
an  administrative  order  of  the  Imperial  Chancellor.  Legally 
he  was  without  any  responsibility  of  his  own,  and,  as  regards 
the  Imperial  Chancellor,  he  was  not  independent.  As  a 
result,  the  Chancery  retained  its  full  significance  in  all  matters 
which  were  reserved  by  special  ordinance  to  the  jurisdiction 
of  the  Imperial  Chancellor,  or  which,  on  account  of  their 
importance,  must  be  brought  to  his  knowledge  and  decision. 
There  were,  accordingly,  two  Ministries  at  the  same  time, 
the  one  superimposed  upon  the  other:  the  presidency, 
whose  advantage  lay  in  its  mastery  of  details  and  in  its 
more  accurate  knowledge  of  local  persons  and  relations, 
and  the  Imperial  Chancery,  whose  advantage  lay  in  its 
larger  legal  power  and  in  its  closer  touch  with  the  central 


ALSACE-LORRAINE:    ITS   RELATION   TO  THE   EMPIRE      21$ 

Boards  of  the  Empire,  as  well  as  with  the  Bundesrat  and 
Reichstag."  1 

On  the  27  May,  1871,  the  Bundesrat  created  a  special 
committee  for  Alsace-Lorraine,  which  to-day  forms  the 
ninth  of  the  Standing  Committees  of  that  body. 

Like  the  period  of  military  dictatorship,  the  dictatorship 
of  the  Emperor  was  also  a  transition  period,  and  was  so 
intended.  The  law  which  provided  for  it  fixed  also  the 
date  on  which  the  strongly  concentrated,  monarchical 
form  of  organization  in  Alsace-Lorraine  should  give  place 
to  another  arrangement,  by  the  introduction  of  the  Imperial 
Constitution  into  the  territory. 

3.  The  third  period  extends  from  i  January,  1874,  to 
28  May,  1877,  at  which  time  the  Law  of  2  May,  i877,2 
went  into  effect.  With  the  introduction  of  the  Imperial 
Constitution  into  Alsace-Lorraine  on  i  January,  1874, 
in  accordance  with  the  provisions  of  the  Law  of  25  June, 
i873,3  an  essential  change  took  place  in  the  constitutional 
position  of  the  Kaiser.  The  monarchical  concentration  of 
power  in  Alsace-Lorraine  came  to  an  end.  The  legislative 
power  no  longer  lay  in  the  hands  of  the  Kaiser  alone,  with 
certain  requirements  as  to  the  consent  of  the  Bundesrat 
and  Reichstag,  but  it  passed  to  the  hands  of  those  organs 
which,  under  the  Constitution,  were  competent  to  legislate 
in  matters  falling  within  the  jurisdiction  of  the  Empire  as 
such,  viz.  the  Bundesrat  and  Reichstag.  The  power  of  the 
Kaiser  was  no  longer  dictatorial.  It  dwindled  to  the  mere 
engrossment  and  publication  of  the  laws.  With  the  intro- 
duction of  the  Constitution,  the  right  of  the  Kaiser  to  sanction 
the  laws  vanished,  and  his  veto  power,  which  he  had  pos- 
sessed in  the  second  period,  disappeared  also.  From  this 

1  Laband,  II.  pp.  218,  219.  2  RGBl.  p.  491;   Triepel,  p.  213. 

*  RGBl.  p.  161;  Triepel,  p.  156;  GBl.  jur  El.-Loth.  p.  131. 


2l6  THE  GERMAN   EMPIRE 

time  on,  the  sanction  of  the  laws  lay  in  the  hands  of  the 
Bundesrat  alone.1  The  Kaiser  retained  one  right,  however, 
which  was  not  conferred  upon  him  by  the  Imperial  Con- 
stitution. This  right  is  set  forth  in  the  Law  of  25  June, 
J873,  §  8:  "Even  after  the  introduction  of  the  Imperial 
Constitution,  and  until  such  time  as  the  matter  shall  be 
otherwise  regulated  by  law,  the  Kaiser  may,  with  the  consent 
of  the  Bundesrat,  and  while  the  Reichstag  is  not  in  session, 
issue  ordinances  which  shall  have  the  force  of  law."  Such 
ordinances  could  not  conflict  with  the  Constitution  or 
with  the  imperial  laws  in  force  at  the  time,  they  could  be 
issued  while  the  Reichstag  was  not  in  session,  and  must  be 
laid  before  that  body  at  its  next  session  for  its  action.  More- 
over, the  Law  of  25  June  provided  for  the  election  of  fifteen 
members  to  the  Reichstag  from  Alsace-Lorraine. 

So  far  as  legislative  competence  is  concerned,  the  intro- 
duction of  the  Imperial  Constitution  into  Alsace-Lorraine 
removed  the  line  of  division  which  had  split  the  general 
territory  of  the  Empire  into  two  spheres  of  legislation.  The 
general  legislation  of  the  Empire  extended  to  all  the  affairs 
of  the  new  imperial  territory,  not  only  to  those  matters 
which  fall  within  the  general  competence  of  the  Empire, 
but  also  to  those  which,  in  the  several  States,  are  reserved 
for  State  legislation.  No  line  of  demarcation  was  drawn 
between  the  legislative  competence  of  the  Empire  and  the 
legislative  competence  of  the  territory.  For  in  the  imperial 
territory  there  existed  no  power  but  imperial  power,  and 
hence  there  was  no  lawgiver  for  Alsace-Lorraine  save  the 
Empire  itself.  As  the  Law  of  9  June,  1871,  §  3,  Cl.  4, 
says,  "After  the  introduction  of  the  Imperial  Constitution, 
until  such  time  as  the  matter  is  otherwise  regulated  by  impe- 

1  Laband,  II.  p.  250,  note  i;  Hand,  Staatsr.  p.  827;  Strober,  in  Archiv 
f.  d.  &.  Recht,  I.  p.  662,  note  68;  Meyer,  Staatsr.  p.  429. 


ALSACE-LORRAINE:   ITS   RELATION  TO  THE  EMPIRE      2 1/ 

rial  law,  the  power  of  legislation,  even  in  those  affairs  which, 
in  the  several  States,  are  not  subjected  to  the  legislative  author- 
ity of  the  Empire,  shall  belong  to  the  Empire."  No  limita- 
tion, therefore,  such  as  was  laid  upon  the  legislative  action 
of  the  Empire  with  respect  to  the  individual  States,  bound  it 
with  respect  to  Alsace-Lorraine. 

No  change  was  wrought  in  the  administrative  organiza- 
tion of  Alsace-Lorraine  by  the  introduction  of  the  Imperial 
Constitution.  On  the  29  October,  1874,  however,  the  Kaiser 
issued  a  decree l  having  for  its  subject-matter  the  erection  of 
an  advisory  Territorial  Committee  for  Alsace-Lorraine. 
By  the  provisions  of  this  decree,  the  Imperial  Chancellor  was 
authorized  to  construct  a  Territorial  Committee  by  calling 
upon  the  three  District  Assemblies  —  Upper  Alsace,  Lower 
Alsace,  and  Lorraine,  —  each  to  elect  ten  of  their  number, 
as  well  as  three  substitutes,  to  serve  on  the  committee.  The 
term  was  fixed  at  three  years,  but  should  a  member  lose  his 
seat  in  the  District  Assembly  in  the  meanwhile,  his  mem- 
bership in  the  committee  also  lapsed.  The  sessions  of  the 
committee  were  not  to  be  public,  and  the  Kaiser  reserved 
the  right  to  determine  the  time  and  place  of  its  meeting.  As 
the  opening  paragraph  of  the  decree  explained,  the  purpose 
for  which  the  committee  was  created  was  to  give  expert 
advice  on  such  drafts  of  laws  as  might  be  laid  before  it, 
touching  matters  concerning  Alsace-Lorraine,  which  were 
not  reserved  by  the  Imperial  Constitution  to  the  legislation  of 
the  Empire.  The  territorial  budget  was  submitted  to  this 
committee.  Bills  to  be  presented  to  this  committee  were 
brought  to  its  notice  by  the  president  (Oberpraesident), 
who  was  authorized  to  attend  its  meetings  either  in  person 
or  by  representative.  The  president,  or  his  representative, 

1  GBl.  /.  El.-Loth.  p.  37;  BGBl.  for  1877,  p.  492,  as  appended  to  Law  of 
a  May,  1877.  Also  Triepel,  p.  213. 


2l8  THE  GERMAN  EMPIRE 

must  be  heard  at  any  time  upon  their  request.  The  advice 
of  the  committee  was  had  before  a  bill  was  laid  before  the 
competent  legislative  bodies  for  final  determination.  It 
should  be  noted,  however,  that  this  securing  of  the  advice 
of  the  Territorial  Committee  was  purely  permissory.  It 
was  not  obligatory.  The  competence  of  the  Committee 
was  merely  advisory  and  in  no  degree  legislative.  As  Laband 
puts  it :  "  This  decree  has  created  no  principle  of  law  (Recht- 
satz);  it  has  primarily  the  significance  of  an  instruction 
merely.  Even  without  the  decree,  the  government  would  not 
have  been  restrained  from  securing  expert  advice  on  drafts 
of  laws,  and  on  the  other  hand,  the  obtaining  of  such  advice 
was  not  raised  to  the  character  of  a  legal  requirement  in 
territorial  legislation."1  It  is  very  evident,  however,  that 
the  creation  of  such  a  committee,  even  though  it  possessed 
no  legal  powers,  served  to  strengthen  the  position  of  the 
president. 

4.  The  fourth  period  begins  with  the  Law  of  2  May,  iSyy,2 
which  marks  a  significant  step  toward  a  larger  degree  of 
independence  on  the  part  of  Alsace-Lorraine,  particularly 
hi  legislative  matters.  By  the  provisions  of  this  law,  the 
Territorial  Committee,  which  up  to  this  time  had  possessed 
advisory  powers  only,  became  a  fixed  and  important  factor 
in  the  legislation  of  the  territory.  "Territorial  laws  for 
Alsace-Lorraine,  including  the  annual  territorial  budget, 
shall  issue  from  the  Kaiser,  with  the  consent  of  the  Bundesrat, 
when  the  Territorial  Committee,  erected  in  accordance  with 
the  imperial  decree  of  29  October,  1874,  shall  have  con- 
sented to  the  same"3 

1  Laband,  II.  p.  219. 

1  Law  respecting  the  Territorial  Legislation  of  Alsace-Lorraine,  RGBl. 
p.  491;  Triepel,  p.  213. 

s  Law  of  2  May,  1877,  §  i. 


ALSACE-LORRAINE:   ITS  RELATION  TO  THE  EMPIRE      2 19 

Several  things  should  be  noted  with  respect  to  the  Law  of 
2  May,  1877.  In  the  first  place,  a  distinction,  hitherto  non- 
existent, is  drawn  between  imperial  competence  and  territorial 
competence  in  territorial  legislation.  Perhaps  it  were  more 
accurate  to  say  that  two  distinct  fields  were  recognized  in 
which  the  legislative  power  of  Alsace-Lorraine  operated. 
The  passage  of  the  Law  of  2  May,  1877,  did  not  in  any  wise 
affect  Cl.  4  of  §  3  of  the  Law  of  9  June,  1871,  which  de- 
clared that  after  the  introduction  of  the  Imperial  Constitution 
into  Alsace-Lorraine,  the  legislative  power  in  that  territory, 
even  in  matters  which,  in  the  several  States,  did  not  fall 
within  the  competence  of  the  Empire,  belonged  to  the  Em- 
pire, until  otherwise  provided  for  by  imperial  law.  For 
§  2  of  the  Law  of  2  May,  1877,  expressly  states  that  the 
issuance  of  territorial  laws  in  the  form  of  imperial  legisla- 
tion is  reserved.  The  competence  of  the  Empire  is,  there- 
fore, in  no  wise  limited  by  this  law.  A  form  of  legislation  is, 
however,  introduced,  other  than  that  provided  for  by  the 
Imperial  Constitution,  in  matters  affecting  the  territory. 
Laws  passed  by  the  regular  legislative  factors  of  the  Empire, 
for  the  Empire  at  large,  would  extend  also  to  Alsace-Lorraine ; 
but,  by  the  terms  of  the  Law  of  2  May,  1877,  a  line  of  demar- 
cation was  drawn  between  the  affairs  of  the  Empire  in  general 
and  those  of  Alsace-Lorraine  in  particular.  No  change 
was  effected  in  the  State-power  operating  in  the  territory. 
It  was  still  the  power  of  the  Empire  alone.  But  under  the 
new  juristic  character  of  the  Territorial  Committee,  a  dis- 
tinction arose  between  the  laws  touching  the  internal  affairs 
of  Alsace-Lorraine,  and  those  concerning  the  Empire  as  a 
whole,  and,  therefore,  concerning  Alsace-Lorraine  as  a  part  of 
that  whole.  In  other  words,  a  distinction  was  made  beween 
laws  made  in  Alsace-Lorraine,  and  laws  made  simply  for 
Alsace-Lorraine.  As  to  the  nature  of  these  laws,  Laband 


220  THE  GERMAN  EMPIRE 

has  this  to  say :  *  "Territorial  laws  for  Alsace-Lorraine  are  at 
present  still  imperial  laws,  i.e.  laws  sanctioned  by  the  Empire. 
Territorial  laws  for  Alsace-Lorraine  are  provincial  laws  of 
the  Empire  for  Alsace-Lorraine,  in  matters  which,  so  far  as 
the  rest  of  the  Empire  is  concerned,  are  excluded  by  the 
Imperial  Constitution  from  the  competence  of  the  Empire. 
For  territorial  laws  of  this  sort,  the  Law  of  2  May,  1877,  pre- 
scribes a  special  form,  but,  so  far  as  the  nature  and  consti- 
tutional significance  of  those  laws  are  concerned,  they  are 
not,  like  the  laws  of  the  several  States,  an  expression  of  auton- 
omy, but  a  manifestation  of  imperial  power.  'Autonomy' 
does  not  consist  of  a  peculiar  form  in  which  laws  come  into 
being,  but  in  the  independent  right  to  issue  laws.  Such  a 
right  presumes  a  subject  to  whom  it  belongs.  In  the  imperial 
territory  such  a  subject  is  wanting."  All  laws  for  Alsace- 
Lorraine,  therefore,  are  imperial  laws,  but,  under  the  Law  of 
2  May,  1877,  two  ways  are  provided  by  which  they  may  be 
issued :  the  usual  way  of  imperial  legislation,  which  was  the 
only  way  up  to  the  passage  of  the  Law  of  2  May,  1877;  and, 
secondly,  the  method  set  forth  in  §  i  of  that  law,  already 
noted  above.  This  latter  method  became  the  regular  mode 
of  legislating  for  the  territory,  while  the  ordinary  method  of 
imperial  legislation  was  merely  a  right  reserved  by  the  Empire 
for  exceptional  use.2 
The  new  mode  of  legislation  introduced  by  the  Law  of 

1  Laband,  II.  p.  251. 

J  Hanel  states  the  matter  thus :  "  Alle  Reichsangelegenheiten  werden  auch 
fur  Elsass-Lothringen  durch  diejenigen  Organe,  in  denjenigen  Formen  und 
mit  denjenigen  Rechtswirkungen  von  Reichs  wegen  geordnet  und  verwaltet, 
wie  dies  gemeingiiltig  die  Reichsverfassung  vorschreibt.  Dagegen  die 
elsass-lothringischen  Landesangelegenheiten  werden  von  den  Organen  des 
Reiches  in  den  besonderen  Ordnungen,  in  den  Formen  und  mit  den  Rechts- 
wirkungen wahrgenommen,  welche  die  Reichsgesetze  oder  das  Partikular- 
recht  fur  Elsass-Lothringen  besonders  vorschreiben."  Staatsr.  I.  p.  828. 


ALSACE-LORRAINE:    ITS   RELATION  TO  THE  EMPIRE      221 

2  May,  1877,  deviated  from  the  ordinary  method  of  imperial 
legislation  in  several  particulars.  The  consent  of  the  Reichs- 
tag was  no  longer  necessary  even  in  matters  pertaining  to  the 
territorial  budget.  In  its  place  stood  the  Territorial  Com- 
mittee, a  body  elected  out  of  the  territory  itself,  thus  giving 
Alsace-Lorraine  a  positive  voice  in  territorial  legislation.  The 
factors  of  territorial  legislation  now  were  the  Kaiser,  the 
Bundesrat,  and  the  Territorial  Committee.  Another  devia- 
tion manifested  itself  in  the  r61e  played  by  the  Kaiser  in 
territorial  legislation.  Prior  to  the  Law  of  2  May,  1877, 
following  the  method  of  ordinary  imperial  legislation,  the 
laws  for  Alsace-Lorraine  were  sanctioned  by  the  Bundesrat 
in  accordance  with  Art.  7  of  the  Imperial  Constitution.  Under 
the  provisions  of  §  i  of  the  Law  of  May  2,  1877,  legislation 
was  not  had,  as  stipulated  by  Art.  5  of  the  Imperial  Consti- 
tution, through  the  Bundesrat  and  Reichstag,  but  through  the 
Kaiser,  with  the  consent  of  the  Bundesrat  and  Territorial 
Committee.  The  territorial  laws  were  sanctioned  by  the 
Kaiser,  just  as  they  had  been  sanctioned  by  him  under  the 
Law  of  9  June,  1871,  while  the  Bundesrat,  no  longer  the  law- 
giver proper,  was  reduced  to  the  level  of  the  Territorial 
Committee,  —  a  body  whose  consent  is  necessary  to  the 
issuance  of  a  law  by  the  Emperor,  but  whose  determinations 
the  Kaiser  was  not  bound  to  engross  and  publish.1 

While  the  Law  of  2  May,  1877,  did  not  affect  the  admin- 
istrative organization  of  the  imperial  territory,  certain 
changes  which  were  taking  place  in  the  Imperial  Chancery 

1  "Zwar  unterscheidet  die  Fassung  des  §  i  die  Zustimmung  des  Bundes- 
rats  von  derjenigen  des  Landesausschusses  durch  eine  verschiedene  Art  der 
Erwahriung;  wirklich  entscheidend  aber  ist  allein  der  Satz,  dass  dem  Kaiser 
das  Placet  der  Landgesetze  zusteht  und  er  nicht  rechtlich  verpftichtet  ist, 
ein  vom  Bundesrate  beschlossenes  Gesetz  auszufertigen  und  zu  verkiindi- 
gen."  Laband,  II.  p.  252.  The  publication  of  the  laws  takes  place  by 
means  of  a  special  Gesetzblatt  jilr  Elsass-Lothringen. 


222  THE   GERMAN   EMPIRE 

were  making  themselves  felt  in  Alsace-Lorraine.  The 
Imperial  Chancery  began,  in  1873,  to  raise  what  had  hitherto 
been  mere  "Divisions"  of  one  general  office  which  had  devel- 
oped under  the  Imperial  Chancellor,  into  separate  "De- 
partments," with  a  State  secretary  at  the  head  of  each.1  On 
i  January,  1877,  "Division  III.,"  which  had  been  occupied 
with  the  affairs  of  Alsace-Lorraine,  became  a  separate 
Department,  known  as  the  "Imperial  Chancery  Depart- 
ment for  Alsace-Lorraine."  At  the  same  time  "Division  IV." 
was  raised  to  the  "Imperial  Department  of  Justice."  Each 
of  these  Departments  had  a  Secretary  of  State  at  its  head. 
On  17  March,  1872,*  a  law  was  passed  enabling  the  Imperial 
Chancellor  to  appoint  a  substitute,  or  deputy,  who  might 
sign  for  him  and  assume  other  responsibilities  imposed  upon 
the  Imperial  Chancellor  by  the  Imperial  Constitution  or  by 
law.  The  heads  of  the  Departments,  moreover,  were  made 
competent  to  act  as  such  deputies  within  the  jurisdiction  of 
the  Department  of  which  they  were  chief.  As  a  result  of  this 
law,  a  new  instance,  so  far  as  the  administrative  affairs  of  the 
territory  were  concerned,  was  thrust  in  between  the  Imperial 
Chancellor  and  the  president.  This  complicated  the  position 
of  the  president  very  considerably.  "The  three  instances 
which  had  been  created  under  the  laws  of  the  territory  and 
of  the  Empire,  had  become  five.  Furthermore,  the  Depart- 
ments of  Administration  and  of  Justice  were  torn  apart  and 
assigned  to  two  entirely  distinct  and  separate  Boards."  3 

In  order  to  remove  the  difficulties  arising  out  of  this  state 
of  affairs,  a  law  was  passed  4  July,  1879,*  with  the  going  into 
effect  of  which,  on  i  October,  1879,  begins  the 

5.    Fifth  period  in  the  development  of  the  territorial  or- 

1  See,  e.g.,  Law  of  27  June  1873  (RGBl.  p.  161 ;    GBl.  /.  E.-L.  p..  131); 
Ordinance  of  22  December,  1875  (RGBl.  p.  379). 

2  RGBl.  p.  ^.       >  Laband,  II.  p.  220.      4  RGBl.  p.  165;  Triepel,  p.  219. 


ALSACE-LORRAINE:    ITS   RELATION  TO  THE   EMPIRE      22$ 

ganization,  the  system  under  which  Alsace-Lorraine  is  at 
present  governed.  The  changes  made  by  this  law  were 
sweeping.  The  administration  of  the  imperial  territory  was 
wholly  revolutionized.  It  was  entirely  dissociated  from 
the  person  of  the  Imperial  Chancellor,  the  Department  of 
the  Imperial  Chancery  for  Alsace-Lorraine  was  abolished, 
together  with  the  office  of  president,  and  the  seat  of  all  the 
governmental  organs  of  the  territory  was  transferred  to  the 
territory  itself.  In  order  to  carry  the  functions  of  the  De- 
partment for  Alsace-Lorraine  as  well  as  of  the  Department 
of  Justice,  so  far  as  they  touched  territorial  matters,  and  in 
order  to  perform  the  duties  which  had  been  laid  upon  the 
president,  a  board  was  erected  in  Strassburg,  under  the 
name  of  "Ministry  for  Alsace-Lorraine,"  with  a  Secretary  of 
State  at  its  head.1 

The  Law  of  4  July,  1879,  made  no  change  in  the  relation 
of  the  Emperor  to  the  territory.  On  the  other  hand,  the 
transfer  of  the  seat  of  the  central  administrative  authorities 
from  Berlin  to  Strassburg  made  a  severing  of  the  relations 
between  those  authorities  and  the  Imperial  Chancellor  nec- 
essary, if  the  evils  which  the  law  was  designed  to  correct 
were  to  be  eliminated.  Accordingly,  §  i  of  the  law  em- 
powers the  Kaiser  to  transfer  the  authority  vested  in  him  as 
" Delegatar"  of  the  State-power,  in  Alsace-Lorraine,  to  an 
official  to  be  known  as  the  "  StaMhalter,"  who  should  be 
appointed  and,  if  needs  be,  dismissed  by  the  Kaiser,  and  who 
should  have  his  residence  in  Strassburg.  Moreover,  the 
scope  of  the  authority  to  be  thus  delegated  to  the  Statthalter 
was  to  be  determined  by  ordinance  of  the  Kaiser.2  Upon 

1  Law  of  4  July,  1879,  §  3. 

J  See  the  following  ordinances:  23  July,  1879  (RGBl.  p.  282);  28  Sep- 
tember, 1885  (RGBl.  p.  273);  15  March,  1888  (RGBL  p.  130);  20  June, 
1888  (RGBl.  p.  189);  ii  December,  1889  (RGBl.  1890,  p.  2);  14  March, 
1893  (RGBl.  p.  137);  5  November,  1894  (RGBl.  p.  529). 


224  THE  GERMAN  EMPIRE 

the  Statthalter  were  to  rest  also  all  those  powers  and  duties 
which  had  been  conferred  by  law  or  ordinance  upon  the 
Imperial  Chancellor  in  matters  pertaining  to  Alsace-Lor- 
raine, as  well  as  the  extraordinary  powers  assigned  to  the 
president  by  the  Law  of  30  December,  iSyi.1  At  the  same 
time  the  number  of  members  in  the  Territorial  Committee 
was  increased  and  its  powers  enlarged.  A  Council  of  State 
was  added  to  the  organization  of  the  territory,  with  advisory 
powers,  while  the  competence  of  the  Bundesrat  was  restricted 
by  the  transfer  of  certain  powers  heretofore  exercised  by  that 
body  to  the  new  ministry. 

The  institutions  of  the  imperial  territory,  as  at  present 
organized,  are  the  following :  — 

1.  The  Kaiser.  —  While   the  State- power  in  Alsace-Lor- 
raine rests  in  the   Empire,  the  exercise   of  that  power  is 
placed  in  the  hands  of  the  Kaiser.    The  legal  title  by  which 
the  Kaiser  exercises  that  power  is  the  Law  of  9  June,  1871. 
The  Kaiser  is  not  the  ruler,  or  monarch,  of  Alsace-Lor- 
raine in  the  sense  in  which  the  king  of   Bavaria  is  monarch 
of  Bavaria,  for  example.    Alsace-Lorraine  is  not  an  appur- 
tenance  of   the   imperial   crown.    Whatever   authority   is 
exercised  by  the  Kaiser,  in  the  territory,  is  exercised  by 
him  "in  the  name  of  the  Empire,"  never  in  his  own  name.3 
The  "Landesherr"  of  Alsace-Lorraine  is  the  Empire.    The 
Kaiser  is  the  "Delegatar"  of  the  Empire. 

2.  The  Statthalter,  or  Imperial  Deputy.  —  The  legal  title 
of  the  Statthalter  rests  upon  the  Law  of  4  July,  1879,  §§  J 
and  2.    He  is  appointed  by  the  Kaiser  and  is  removable  by 

1  Law  of  4  July,  1879,  §  2.  For  Law  of  30  December,  1871,  see 
CBl.  f.  E.-L.,  1872,  p.  49.  Section  10  of  this  law  grants  certain  military 
powers  to  the  president  in  case  the  public  safety  is  threatened.  This  sec- 
tion was  repealed  by  the  Law  of  18  June,  1902  (RGBl.  p.  281). 

J  Laband,  II.  pp.  221,  222;  Meyer,  Staatsr.  p.  431,  note  i;  Stbber,  op. 
cit.  pp.  650  ff.,  653,  658. 


ALSACE-LORRAINE:   ITS  RELATION  TO  THE  EMPIRE      22$ 

him.  The  appointment  is  countersigned  by  the  Imperial 
Chancellor,1  as  is  also  the  ordinance  transferring  to  him  the 
powers  of  the  Emperor.  The  Statthalter  acts  in  two  capaci- 
ties :  — 

(a)  He  is  the  personal  representative  of  the  Kaiser,  when  the 
Kaiser  sees  fit  to  invest  him  with  the  powers  exercised  by 
himself  in  the  imperial  territory.     The  Kaiser  is  not  bound 
to  transfer  his  powers  to  the  Statthalter.     The  matter  is 
purely  optional  with  him.     But  when  the  Statthalter  has  been 
invested  with  the  governmental  powers  of  the  Kaiser  in  Al- 
sace-Lorraine, he  becomes,  until  such  time  as  these  powers 
may  be  resumed  by  the  Kaiser,  the  vice-Kaiser.     The  powers 
thus  transferred  by  the  Kaiser  attach  to  the  person  of  the 
Statthalter,  not  to  the  office.    Hence,  when  the  Statthalter  is 
hindered  in  the  exercise  of  his  imposed  duties,  these  func- 
tions revert  to  the  Kaiser.     When  acting  as  the  representative 
of  the  Kaiser,  the  Statthalter  stands  in  a  position  similar  to 
that  of  a  ruler,  and  is,  therefore,  not  responsible  constitu- 
tionally nor  is  his  relation  a  disciplinary  one.    He  is,  of 
course,  responsible  to  the  Kaiser  for  the  proper  fulfilment 
of  his  duties.    The  decrees  and  ordinances  issued  by  the 
Statthalter  in  his  capacity  as  representative  of  the  Kaiser  have 
the  same  force  as  imperial  ordinances  and  decrees,  and  re- 
quire for  their  validity  the  countersignature  of  the  Secretary 
of  State,  who  thereby  assumes  the  responsibility  therefor.2 

(b)  The  Statthalter  is  also  an  imperial  official.     He  holds 
the  legal  position  in  Alsace-Lorraine  which  was  occupied 
earlier  by  the  Imperial  Chancellor  and    the  president.3    As 

1  As  to  whether  the  appointment  of  a  Statthalter  is  optional  with  the  Em- 
peror see  Laband,  II.  pp.  229  ff.,  who  declares  with  right  that  only  the  transfer 
of  the  Kaiser's  authority  is  optional.     The  appointment  of  a  Statthalter, 
on  the  contrary,  is  obligatory. 

2  Law  of  4  July,  1879,  §  4,  Cl.  I. 

3  "  On  the  Statthalter  are  laid,  at  the  same  time,  the  powers  and  duties 

Q 


226  THE  GERMAN   EMPIRE 

an  imperial  official  the  Statthalter  is  not  merely  a  deputy  of 
the  Imperial  Chancellor  within  the  meaning  of  the  "Law 
respecting  the  Appointment  of  Deputies  for  the  Imperial 
Chancellor."  '  "The  Statthalter  takes  the  place  of  the  Im- 
perial Chancellor,  not  as  his  Delegatar,  but  as  his  successor. 
The  competence  of  the  Imperial  Chancellor  was  divided 
into  two  spheres  by  the  Law  of  4  July,  1879 :  the  compe- 
tence in  general  affairs  of  the  Empire,  and  the  competence 
in  matters  pertaining  to  the  imperial  territory.  The  latter 
has  been  taken  away  from  the  Imperial  Chancellor  and 
handed  over  to  the  Statthalter.  The  principle  of  the  Im- 
perial Constitution  that  there  is  but  one  Imperial  Minister 
has  been  changed  by  the  Law  of  1879.  Since  then  there 
have  been  two:  the  Statthalter  is  the  Imperial  Chan- 
cellor for  Alsace-Lorraine,  just  as  the  Territorial  Com- 
mittee is  the  Reichstag  for  Alsace-Lorraine." 2  While 
acting  in  the  capacity  of  an  imperial  official,  in  other  words, 
as  the  successor  of  the  Imperial  Chancellor,  as  provided  in 
the  Law  of  1879,  §  2,  the  Statthalter  is  responsible.  He  is 
responsible,  however,  not  to  the  Territorial  Committee,  but 
to  the  Reichstag,  at  least  in  theory.  In  practice,  nevertheless, 
his  responsibility  would  seem  to  be  directed  to  the  Territorial 
Committee.  "  The  Statthalter  has  no  relations  whatever  with 
the  Reichstag,  while  the  Territorial  Committee,  in  fixing  the 
budget,  auditing  the  accounts,  and  discussing  measures, 
petitions,  etc.,  is  in  a  position  to  criticise  the  action  of  the 
government,  and  to  it  alone  can  the  government  .justify 
its  acts  and  establish  its  propositions."  3  Theoretically,  the 

imposed  by  law  and  ordinance  upon  the  Imperial  Chancellor  in  the  affairs  of 
Alsace-Lorraine,  as  well  as  the  extraordinary  powers  imposed  on  the  presi- 
dent by  Sec.  10  of  the  Law  of  30  December,  1871."  Law  of  4  July,  1879, 

§2- 

1  Law  of  17  March,  1878  (RGBl.  p.  7). 

3  Laband,  II.  p.  229.  *  Ibid.  p.  331. 


ALSACE-LORRAINE:    ITS   RELATION  TO  THE  EMPIRE 

Statthalter  should  countersign  the  ordinances  of  the  Emperor 
touching  the  territorial  affairs  of  Alsace-Lorraine,  that  is, 
touching  those  matters  which  in  the  division  of  powers  under 
the  Imperial  Constitution  would  fall  within  the  competence 
of  the  several  States.1  Here  again  theory  and  practice  do  not 
coincide.  A  law  affecting  the  territorial  affairs  of  Alsace- 
Lorraine,  passed,  under  the  reservation  contained  in  §  2, 
Cl.  i,  of  the  Law  of  2  May,  1877,  by  the  legislative  organs 
of  the  Empire,  is  signed  by  the  Statthalter  and  Imperial 
Chancellor,  the  latter  assuming  the  responsibility  and  the 
supervision  of  the  law's  execution.2  In  all  those  matters  in- 
dicated in  §  2  of  the  Law  of  4  July,  1879,  i.e.  in  all  matters 
wherein  the  Statthalter  acts  as  an  imperial  official  and  as  the 
successor  of  the  Imperial  Chancellor,  the  State  Secretary  has 
the  rights  and  responsibility  of  a  deputy  of  the  Statthalter, 
to  that  degree  in  which,  under  the  Law  of  17  March,  1878, 
such  rights  and  responsibility  are  possessed  by  the  deputy  of 
the  Imperial  Chancellor.  The  right  of  the  Statthalter  him- 
self to  perform  any  official  function  which  falls  within  this 
sphere  is  reserved.3 

3.  The  Ministry  in  Alsace-Lorraine,  no  longer  located  in 
Berlin  as  a  division  of  the  Imperial  Chancery,  but,  as  already 
noted,  transferred  to  Strassburg,  still  maintains  the  character 
of  an  imperial  board,  equally  with  the  other  imperial  Depart- 
ments, such  as  the  Department  of  the  Interior  or  the  Depart- 
ment of  Justice,  not,  however,  under  the  Imperial  Chancellor, 
but  under  the  Statthalter.  At  the  head  of  the  ministry  is  a 

1  Law  of  4  July,  1879,  §§2  and  4.     Compare  also  Law  of  9  June,  1871, 
§  3,  Cl.  4,  and  Law  of  2  May,   1877,   §§  i  and  2.     See  Laband,  II.  p. 
230;    Meyer,  Staatsr.  p.  432;    Arndt,  Staatsr.  p.  754;    Kayser,  in  Holzen- 
dorff's  Rechtlexikon,  III.  p.  405 ;  Leoni,  Das  off.  R.  d.  Reichlands  El.-Loth. 
pp.  89,  167  ff. 

2  See  examples  cited  by  Laband,  II.  p.  230,  note  5. 

3  Law  of  4  July,  1879,  §  4,  Cl.  2. 


228  THE  GERMAN  EMPIRE 

State  Secretary,  who,  as  noted  in  the  preceding  paragraph, 
in  matters  where  the  Statthalter  acts  as  the  successor  of  the 
Imperial  Chancellor,  stands  to  that  official  as  the  deputy 
of  the  Imperial  Chancellor,  under  the  Law  of  17  March,  1878, 
stands  to  his  chief.  The  ministry  falls  into  various  divi- 
sions, at  the  head  of  each  of  which  is  placed  an  Under  Sec- 
retary of  State.  Both  the  State  Secretary  and  the  Under 
Secretaries  are  appointed  by  the  Kaiser.  These  appointments 
are  countersigned  by  the  Statthalter,  to  whom  is  assigned 
the  appointment  of  the  other  high  ministerial  officials.1 
The  details  of  the  organization  of  the  ministry  are  fixed  by 
ordinance  of  the  Kaiser.2  The  activities  of  the  ministry 
extend  to  all  the  duties  laid  upon  the  former  Imperial  Chan- 
cery Office  for  Alsace-Lorraine  and  upon  the  Imperial  Judi- 
cial Office  for  the  administration  of  Alsace-Lorraine,  as  well 
as  to  those  duties  which  fell  to  the  president  prior  to  the  pas- 
sage of  the  Law  of  4  July,  1897,  together  with  such  further 
enlargement  of  competence  as  may  have  been  granted  since 
by  territorial  legislation.3  From  the  ministry  proceed  the 
various  administrative  and  judicial  institutions  of  the  terri- 
tory, with  the  exception  of  those  which  are  concerned  with 
matters  such  as  the  post  and  telegraph,  imperial  railroads, 
and  the  Imperial  Bank,  which  belong  to  the  competence  of 
the  Empire,  and  military  matters,  which  are  administered  by 
Prussia.4 

1  Law  of  4  July,  1789,  §  6.     The  subordinate  officials  are  appointed 
by  the  State  Secretary.     As  to  the  legal  relations  of  these  officials,  see  Law 
of  4  July,  1879,  §  6,  Cl.  3;    also  Laband,  II.  pp.  233  ff.;  Hanel,  Staatsr. 
p.  831 ;  Meyer,  Staatsr.  p.  440,  note  4;  also  Leoni,  pp.  128  ff. 

2  Law  of  4  July,  1879,  §  5 ;   Ordinance  of  23  July,   1879  (GBl.  /.  E.-L. 
p.  81),  with  amendments  of  Ordinance  of  29  July,  1881  (GBl.  p.  95);   21 
April,  1882  (GBl.  p.  67);  25  April,  1887  (GBl.  p.  43);   16  January,  1895 
(GBl.  p.  3). 

8  Law  of  4  July,  1879,  §  3. 

*  See  Leoni,  Das  Verjassungsrecht  von  El.-Loth.  (1892),  pp.  93  ff. 


ALSACE-LORRAINE:   ITS  RELATION  TO  THE  EMPIRE    229 

4.  By  the  terms  of  §  9  of  the  Law  of  4  July,  1879,  a 
Council  of  State  was  created,  consisting  of  the  State  Secretary, 
the  Under  Secretaries,  the  President  of  the  Supreme  Court  of 
the  territory,  the  Chief  Attorney  attached  to  the  Supreme 
Court,  and  from  eight  to  twelve  members  appointed 
by  the  Kaiser  for  a  term  of  three  years.  Three  of  these  mem- 
bers to  be  appointed  by  the  Kaiser  are  nominated  by  the 
Territorial  Committee.  The  meetings  of  the  Council  of 
State  are  presided  over  by  the  Statthalter,  and  in  case  he  be 
hindered,  by  the  State  Secretary.1 

The  functions  of  the  Council  of  State  are  purely  advisory 
in  their  nature,  and  in  no  sense  legislative  or  judicial.2  It  is 
called  upon  to  give  an  opinion  on  the  drafts  of  all  proposed 
laws  and  of  general  ordinances  issued  for  the  execution  of 
the  laws,  as  well  as  on  matters  which  may  be  submitted  to 
it  by  the  Statthalter.  The  Law  of  4  July,  1879,  requires  that 
all  laws  and  general  ordinances,  without  exception,  shall  be 
laid  before  the  Council  of  State.  Should  such  submission  of 
a  law  or  ordinance  to  the  Council  of  State  be  neglected,  the 
omission  would  in  no  wise  affect  the  validity  of  the  measure.3 
The  Council  of  State  is  no  innovation  in  the  organization  of 
Alsace-Lorraine.  It  was  rather  the  revival  of  an  institution 
long  and  favorably  known  there  —  the  Conseil  d'Etat,  whose 
functions  seemed  specially  needed  in  the  peculiar  conditions 
existing  in  Alsace-Lorraine.4  "It  will  hardly  be  doubted," 
say  the  Motiven  to  §  9  of  the  Law  of  4  July,  1879, 
"that  a  comprehensive  and  thorough  consideration  of  the 
propositions  to  be  laid  by  the  government  before  the  legis- 
lative factors  is  better  secured,  if  the  preparation  of  those 

1  Law  of  4  July,  1879,  §  10.     The  order  of    business  is  fixed  by  the 
Emperor. 

2  Legislative  and  other  special  functions  may,  however,  be  granted  to  it 
by  territorial  legislation.     Law  of  4  July,  1879,  §  9. 

3  Leoni,  op.  cit.  p.  96.  *  Ibid.  p.  95. 


230  THE  GERMAN  EMPIRE 

propositions  is  not  left  to  the  individual  ministerial  depart- 
ments alone,  but  is  handed  over  for  discussion  to  a  body  in 
which  a  knowledge  of  law  and  of  business,  an  insight  into  the 
needs  of  the  territory,  and  an  assured  position  in  life  removed 
as  far  as  possible  from  the  struggles  of  political  parties  are 
combined.  The  initiative  and  preliminary  draft  would 
naturally  fall  to  the  minister  of  the  department  concerned, 
as  a  rule,  but  the  necessary  testing  as  to  whether  the  law  would 
be  useful  and  practicable,  whether  it  harmonizes  with  existing 
legislation,  what  reaction  it  might  have  upon  interests  of  the 
territory  administered  by  other  departments,  and,  finally, 
whether  the  idea  has  come  to  the  desired  expression  in  the 
wording  of  the  law,  —  these  go  beyond  the  scope  of  the  in- 
dividual department." 

5.  The  Bundesrat  is  an  organ  of  the  legislative  power  in 
Alsace-Lorraine.  According  to  the  Law  of  2  May,  1877, 
§§  i  and  2,  —  sections  which  were  not  repealed  by  the  Law 
of  4  July,  1879,  —  laws  for  Alsace-Lorraine  are  issued  by  the 
Kaiser  with  the  consent  of  the  Bundesrat,  provided  the  con- 
sent of  the  Territorial  Committee  has  been  obtained  to  the 
desired  measure.  It  is  expressly  provided,  however,  that  the 
power  to  legislate  for  the  imperial  territory  through  the  usual 
organs  of  imperial  legislation  is  specially  reserved.  Like 
laws  of  the  Empire,  therefore,  the  territorial  laws  of  Alsace- 
Lorraine  need  for  their  validity  the  consent  of  the  Bundesrat. 
It  must  not  be  inferred,  however,  that  the  position  of  the 
Bundesrat  is  the  same  in  both  modes  of  legislation.  Accord- 
ing to  Art.  5  of  the  Imperial  Constitution,  the  legislative 
power  of  the  Empire  is  exercised  by  the  Bundesrat  and 
Reichstag,  and  the  consent  of  a  majority  in  both  bodies  is 
necessary  and  sufficient.  Such  consent  being  had,  the 
Kaiser  is  bound  to  engross  and  publish  the  law.1  The  pre- 

lRVerf.  Art.  17. 


ALSACE-LORRAINE:    ITS  RELATION  TO  THE  EMPIRE      231 

vailing  view  is  that  the  Bundesrat  is  the  organ  in  the  Empire 
in  which  legislative  power  rests,  from  which  the  command  in 
the  law  proceeds,  and  to  which  the  ordinance  power  is  as- 
signed. In  the  legislation  of  Alsace-Lorraine,  on  the  con- 
trary, i.e.  in  territorial  legislation,  the  "placet"  belongs  to  the 
Kaiser.  He  it  is  who,  as  bearer  of  the  State-power  in  Alsace- 
Lorraine,  exercises  the  legislative  power,  as  §  i  of  the  Law 
of  2  May,  1877,  explicitly  declares.  In  territorial  legislation, 
therefore,  the  Bundesrat  has  no  authority  other  than  that  pos- 
sessed also  by  the  Territorial  Committee.  The  requirement 
of  its  consent  in  territorial  legislation  is  a  constitutional 
check  upon  the  power  of  the  Kaiser.  Its  functions  are  those 
of  a  parliamentary  body,  or  "Upper  House."  * 

The  cooperation  of  the  Bundesrat,  moreover,  is  necessary 
in  certain  administrative  business.  The  government  is 
bound  to  lay  the  accounts  of  the  territorial  budget  before  the 
Bundesrat,  from  which  body  the  discharge  issues.2  The 
compulsory  retirement  —  pensioning  —  of  an  official  who 
has  become  permanently  incapacitated,  by  reason  of  bodily 
infirmity  or  on  account  of  physical  or  mental  weakness,  for 
the  fulfilment  of  his  duties,  can,  in  case  the  official  has  been 
appointed  by  the  Kaiser,  be  ordered  by  the  Kaiser  only  with 
the  consent  of  the  Bundesrat.3  Ordinances  of  the  Kaiser  re- 
specting the  erection  of  disciplinary  chambers  and  the  delinea- 
tion of  disciplinary  districts,  are  to  issue  with  the  consent  of  the 

1  See  Stenographic  Reports  of  the  Reichstag,  1879,  II.  p.  1631.     It  is  in 
accord  With  this  idea  that  the  power  to  issue  ordinances  for  the  execution  of 
laws  belongs  to  the  Kaiser,  and  not  to  the  Bundesrat.     So  far  as  territorial 
laws  are  concerned,  Art.  7,  Cl.  2,  of  the  RVerj.  does  not  operate.     Leoni, 
op,  cit.  p.  54. 

2  Law  of  2  May,  1877,  §  3. 

3  Law  of  31    March,  1873,  §  66.     With  respect  to  the  other  officials 
the  Statthalter  decides  the  quescion  of  retirement,  and  his  decision  may  be 
appealed  from  to  the  Bundesrat.     See  Leoni,  op.  cit.  p.  54. 


232  THE  GERMAN  EMPIRE 

Bundesrat.  Moreover,  the  Bundesrat  selects  the  members 
of  the  disciplinary  chambers,  and  the  order  of  business  in  the 
disciplinary  boards  is  subjected  to  its  approval.1 

6.  The  Territorial  Committee,  like  the  whole  constitution  of 
Alsace-Lorraine,  is  a  creation  of  imperial  law.  An  imperial 
law  called  it  into  being,  and  so  long  as  the  Empire  reserves  to 
itself  the  power  to  give  a  constitution  to  Alsace-Lorraine,  an 
imperial  law  may  wipe  it  out  of  existence.  In  this  respect  a 
sharp  distinction  is  drawn  between  the  Territorial  Committee 
and  the  Landtag,  or  Chambers,  of  the  several  German 
States.  Moreover,  a  further  difference  is  found  in  the  fact 
that  the  powers  usually  exercised  by  the  Assemblies  of  the 
States  are  not  exercised  by  the  Territorial  Committee  alone 
and  exclusively,  but  are  granted  to  the  Reichstag  also  by  the 
reservation  in  the  Law  of  2  May,  1877.  As  a  result,  the 
cooperation  of  the  Territorial  Committee  in  territorial 
legislation  is  not  a  necessary  one,  but  an  optional  one.  The 
Territorial  Committee  is  not  an  integral  part  of  the  constitu- 
tional structure  of  the  territory,  like  the  Assemblies  of  the 
States,  since  it  can  be  put  out  of  operation  with  no  amend- 
ment of  the  Constitution,  at  the  good  pleasure  of  the  govern- 
ment.2 On  the  other  hand,  the  legal  position  of  the  Terri- 
torial Committee  is  not  identical  with  that  of  a  Provincial 
Assembly.  It  has,  under  the  law,  a  full  right  of  cooperation 
in  legislation  and  in  fixing  the  budget.  It  exercises  all  the 
rights  which  usually  pertain  to  the  representative  body  in  a 
constitutional  State.  The  territory  is  not  a  State,  and--  can, 
for  that  reason,  have  no  State  organs.  The  powers  of  the 

1  Law  of  31  March,  1873,  §§  87,  91,  92,  93.     See  also  Law   of  4  July, 
1872,  §  8.     In  appeals  touching    ecclesiastical  matters,    "Rekurse  wegen 
Misbrauchs,"  the  Bundesrat  decides  after  examination  by  its  Judicial  Com- 
mittee.    In  this  respect  it  takes  the  place  of  the  French  Conseil  d'Etat. 
Law  of  30  December,  1871,  §  9. 

2  Leoni,  op.  cit,  p.  60. 


ALSACE-LORRAINE:    ITS   RELATION   TO  THE   EMPIRE      233 

Territorial  Committee  are  derived  wholly  from  the  Empire, 
and  its  whole  existence  rests,  as  already  stated,  upon  imperial 
legislation.  It  is  therefore  an  organ  of  the  Empire,  or,  to 
use  the  words  of  Laband,  a  "special  substitute  Reichstag, 
which  functions  in  the  affairs  of  Alsace-Lorraine  in  place  of 
the  regular  Reichstag.'1  It  does  not  represent  a  "people  of 
Alsace-Lorraine."  It  is  "the  constitutional  representative 
of  the  German  people  of  the  Empire  so  far  as  that  people  is 
domiciled  in  Alsace-Lorraine,  and  interested  for  that  reason 
in  the  special  affairs  of  the  territory.  It  is  accordingly,  in 
contrast  with  the  Reichstag,  a  special  representative  of  the 
population  of  Alsace-Lorraine,  but  just  as  the  Reichstag  is,  so 
is  it  also,  an  organ  of  the  Empire."  * 

The  Territorial  Committee  is  composed  of  fifty-eight  mem- 
bers, thirty-four  of  whom  are  elected  by  the  District  Assem- 
blies out  of  their  own  midst,2  four  are  chosen  by  the  Communal 
Councils  of  the  cities  of  Strassburg,  Kolmar,  Metz,  and  Mul- 
hausen,  one  from  each  city,3  and  twenty  chosen  by  indirect 
ballot  from  the  various  Circles  into  which  the  territory  is 
divided.4  The  Kaiser  has  the  exclusive  right  to  call,  adjourn, 

1  Laband,  II.  p.  225.  Jellinek,  on  the  contrary,  "  Staatsjragmente,"  published 
in  Festgabe,  Heidelberg,  1896,  p.  287,  declares  that  the  Territorial  Committee 
is  not  an  organ  of  the  Empire,  but  of  the  territory,  as  a  corporation  which 
has  itself  received  its  organization  through  this  very  Territorial  Committee. 
He  further  claims  that  the  Territorial  Committee,  by  reason  of  its  share  in 
the  function  of  legislation,  is  not  the  organ  of  a  provincial  corporation,  but 
a  State  organ. 

2  That  is,  10  by  the  District  Assembly  of  Upper  Alsace,  n  by  the  District 
Assembly  of  Lower  Alsace,  and  1 3  by  the  District  Assembly  of  Lorraine.  Should 
a  member  thus  elected  cease  to  be  a  member  of  the  District  Assembly  during 
the  period  of  his  membership  in  the  Territorial  Committee,  his  membership 
in  the  committee  ceases  at  the  same  time.     Decree  of  29  October,  1875,  Cl.  2. 

3  The  Communal  Council  elects  from  its  own  body,  and  membership  in  the 
committee  ceases  with  the  loss  of  membership  in  the  council. 

4  The  city  Communes  of  Kolmar  and  Mulhausen  are  excluded  from  vot- 
ing in  election  of  members  from  the  Circles  of  Kolmar  and  Mulhausen. 
Law  of  4  July,  1879,  §  13.     Election  is  for  three  years,  ibid.  §  15. 


234  THE  GERMAN  EMPIRE 

and  dissolve  the  Territorial  Committee.1  The  ministers, 
or  their  representatives,  have  a  right  to  be  present  during  the 
transaction  of  business  by  the  Territorial  Committee,  and,  on 
their  own  request,  must  be  heard  at  any  time.2  The  general 
provisions  of  the  imperial  law  protecting  the  members  of 
representative  bodies  apply  also  to  the  members  of  the  Ter- 
ritorial Committee.8  The  special  provisions,  however,  which 
concern  the  members  of  the  Reichstag  particularly,  have  no 
application.4 

LEGISLATION  IN  ALSACE-LORRAINE 

In  Alsace-Lorraine  laws  may  come  into  being  hi  any  one 
of  three  ways:  (i)  through  the  decree  of  the  Kaiser  with 
the  consent  of  the  Bundesrat  and  Territorial  Committee; 
(2)  through  the  decree  of  the  Kaiser  with  the  consent  of  the 
Bundesrat  and  Reichstag;  and  (3)  through  the  decree  of  the 
Kaiser  with  the  consent  of  the  Bundesrat,  in  the  form,  that 
is,  of  an  ordinance  having  the  provisory  force  of  law.  The 
first  method  is  the  one  generally  employed. 

(i)  In  legislation  with  respect  to  matters  pertaining  to  Al- 
sace-Lorraine, in  what  may  be  termed  territorial  legislation, 
in  other  words,  the  right  of  initiative  belongs  not  alone  to  the 
government,  but  also  to  the  Bundesrat  and  Territorial  Com- 
mittee.8 Before  a  bill  is  submitted  to  the  action  of  the  legis- 

1  Law  of  4  July,  1879,  §  19.  Dissolution  of  Territorial  Committee 
carries  with  it  dissolution  of  District  Assemblies.  New  elections  of  District 
Assemblies  must  be  held  within  three  months  and  of  Territorial  Committee 
within  six  months. 

*  Law  of  4  July,  1879,  §  21. 

*  Law  of  30  August,  1871,  Art.  i.    See  also  Laband,  II.  p.  227;  Leoni, 
op.  cit.  p.  72;   Meyer,  Staatsr.  p.  426,  note  17. 

4  The  members  of  the  Territorial  Committee  may  and  do  receive  com- 
pensation. This  is  at  present  fixed  at  20  Marks  per  diem  with  mileage,  and 
is  paid  out  of  the  Territorial  Treasury. 

*  Law  of  4  July,  1879,  §  21. 


ALSACE-LORRAINE:    ITS   RELATION  TO  THE  EMPIRE      235 

lative  bodies,  it  is  laid  before  the  Council  of  State  for  its 
expert  opinion,  and  then  is  introduced  into  the  Bundesrat. 
From  the  Bundesrat  it  passes  to  the  Territorial  Committee. 
The  result  of  the  deliberation  in  the  Bundesrat  is  communi- 
cated to  the  Statthalter  by  the  president  of  the  Bundesrat, 
while  the  action  of  the  Territorial  Committee  is  brought  to  the 
knowledge  of  the  government  by  the  president  of  the  com- 
mittee. The  government  is  not  bound  by  the  action  of  the 
Bundesrat  or  Territorial  Committee,  but  may  withdraw  the 
measure  at  any  time.  Nor  is  there  any  period  fixed  within 
which  the  government,  after  the  Bundesrat  has  acted  upon  a 
bill,  must  submit  the  bill  to  the  Territorial  Committee  for  its 
action  or  to  the  Kaiser  for  his  sanction.  Nothing  stands 
legally  in  the  way  of  submitting  bills  which  have  received  the 
consent  of  the  Bundesrat  before  the  beginning  of,  or  during, 
the  session  of  the  Territorial  Committee,  to  the  action  of  the 
Territorial  Committee  only,  at  a  later  session.1 

Both  Bundesrat  and  Territorial  Committee  may  amend  bills 
submitted  to  them.  If,  however,  amendments  are  made  in 
the  Territorial  Committee,  no  matter  what  the  nature  of  the 
amendment  may  be,  or  how  unimportant  seemingly,  the  bill 
must  be  returned  to  the  Bundesrat  for  its  consent,  since,  as 
Leoni  observes,  "  the  activity  of  the  Bundesrat  may  not  at  any 
time  be  made  contingent  upon  the  views  of  the  government 
as  to  the  importance  or  unimportance  of  the  amendments." 
When  a  bill  is  accepted  by  the  Territorial  Committee  with- 
out alteration,  a  further  action  on  the  part  of  the  Bundesrat, 
such  as  is  both  customary  and  necessary  in  imperial  legisla- 
tion, is  not  required,  nor  is  it  the  practice  in  territorial  legis- 
lation. 

The  sanction  of  a  law  is  imparted  by  the  Kaiser,  not,  as  in 
imperial  legislation,  by  the  Bundesrat.  In  territorial  legis- 
1  Leoni,  op.  cit.  p.  162. 


236  THE  GERMAN  EMPIRE 

lation,  the  Bundesrat  stands  upon  the  same  level  with  the 
Territorial  Committee,  possessing  no  authority  which  is  not 
also  possessed  by  the  territorial  body.  "It  is  not  the  proper 
lawgiver.  Its  consent  is  simply  a  condition  to  the  issuance 
of  a  law  on  the  part  of  the  Emperor."  1  In  deciding  whether 
a  bill  shall  become  actual  law,  the  Kaiser  is  perfectly  free  to 
exercise  his  own  discretion.  He  is  not  in  any  sense  bound 
by  the  majority  vote  of  the  Bundesrat,2  nor  does  the  fact  that 
the  bill  has  passed  both  legislative  bodies  lay  upon  him  any 
legal  obligation  whatever  to  impart  to  that  bill  his  sanction. 
Bills  which  have  received  the  sanction  of  the  Kaiser  are  en- 
grossed by  him  (ausgefertigf),  countersigned  by  the  Statt- 
halter,  or  by  his  representative,  the  State  Secretary  in  Alsace- 
Lorraine,  and  published  in  the  Gazette  for  Alsace-Lorraine. 

(2)  In  §  2  of  the  Law  of  2  May,  1877,  tne  rignt  °f  pass- 
ing laws  for  Alsace-Lorraine  in  the  way  of  ordinary  imperial 
legislation  is  specially  reserved.  Under  the  provisions  of  this 
law,  a  measure  affecting  territorial  matters  in  Alsace-Lorraine 
may  be  passed  by  the  Bundesrat  and  Reichstag  with  the  sanc- 
tion of  the  Emperor,  with  no  reference  whatever  to  the  Ter- 
ritorial Committee.  In  fact,  in  territorial  affairs  legislation 
may  be  had  in  the  production  of  which  the  Territorial  Com- 
mittee is  wholly  ignored,  and  the  ordinary  legislative  organs 
of  the  Empire  alone  are  active.  In  such  cases  bills  might 
arise  in  the  Reichstag  as  well  as  in  the  Bundesrat,  and  such 
bills  as  would  be  passed  in  the  way  of  imperial  legislation 
would  not  be  submitted  to  the  Council  of  State  for  its  opinion. 
Moreover,  bills  passed  in  the  form  of  ordinary  imperial  legis- 
lation, though  the  subject  of  these  measures  be  purely  terri- 

1  Laband,  II.  p.  252;  Leoni.  op.  tit.  p.  161. 

2  "The  Kaiser  may  sanction  a  bill  although  the  Prussian  delegates  in  the 
Bundesrat  have  voted  in  the  negative,  and  may  refuse  sanction  although 
the  Prussian  votes  in  the  Bundesrat  are  in  the  affirmative."     Leoni,  op.  tit. 
p.  162. 


ALSACE-LORRAINE:    ITS    RELATION  TO  THE   EMPIRE      237 

torial  matters,  do  not  lose  thereby  their  character  of  imperial 
laws.1  The  fact  that  matters  pertaining  to  the  imperial 
territory  may  be  affected  by  legislation  in  two  different  modes 
might  well  lead  to  serious  complications.  It  is  not  at  all  un- 
thinkable that  legislation  which  could  not  be  had,  for  various 
reasons,  with  the  cooperation  of  the  Territorial  Committee, 
might  be  had  by  a  legislative  circumlocution  which  would 
bring  the  matter  directly  before  the  legislative  factors  of  the 
Empire  with  no  reference  whatever  to  the  Territorial  Com- 
mittee. Moreover,  delicate  questions  might  arise  as  to  the 
status  of  a  measure  which,  voted  down  in  the  Territorial  Com- 
mittee, was  thereupon  introduced  into  the  Reichstag  by  the 
Bundesrat  for  adoption  in  the  way  of  imperial  legislation. 

What,  now,  is  the  relation  of  laws  passed  in  the  form  of  ter- 
ritorial legislation  to  those  passed  in  the  form  of  imperial 
legislation  ?  According  to  Art.  2  of  the  Imperial  Constitution, 
imperial  laws  take  precedence  of  State  laws.  The  decisive 
fact  is  not  the  date  of  publication.  The  later  law  does  not 
repeal  the  earlier.  The  principle  is  this :  an  expression  of  will 
on  the  part  of  a  higher  power  supersedes  an  expression  of  will 
on  the  part  of  a  subordinate  power.  In  Alsace-Lorraine, 
however,  there  is  but  one  State-power,  —  the  power  of  the 
Empire.  Imperial  laws  for  Alsace-Lorraine  and  territorial 
laws  for  Alsace-Lorraine  passed  in  the  way  of  imperial  legis- 
lation are  both  expressions  of  the  will  of  this  one  State-power. 
Here,  accordingly,  the  principle  would  hold  that  the  later  law 
repealed  the  earlier.  With  respect  to  laws  passed  in  the  form 

1  Laband,  II.  p.  251;  Hanel,  I.  p.  828;  Stober,  op.  cit.  pp.  652  ff.  The 
statement  of  Leoni,  op.  cit.  p.  163,  "The  cooperation  of  the  Reichstag  in 
place  of  the  Territorial  Committee  does  not  make  the  law  an  imperial  law; 
it  remains  in  every  case  a  territorial  law  under  the  sanction  of  the  Kaiser, 
where  a  matter  not  regulated  by  force  of  the  RVerf.  or  the  Territorial  Con- 
stitution forms  the  subject-matter,"  is  a  strained  construction  of  §  2 
of  the  Law  of  2  May,  1877. 


238  THE  GERMAN  EMPIRE 

of  territorial  legislation,  —  in  distinction  from  imperial  leg- 
islation for  Alsace-Lorraine,  or  territorial  laws  passed  in  the 
way  of  imperial  legislation  —  the  principle  does  not  apply, 
so  far  as  the  relation  of  such  territorial  legislation  to  imperial 
legislation  is  concerned.  Laws  passed  in  the  form  of  terri- 
torial legislation,  that  is,  laws  issued  by  the  Emperor  with  the 
consent  of  the  Bundesrat  and  Territorial  Committee,  do  not 
take  precedence  of  imperial  legislation  touching  the  same 
subject,  and  can  neither  amend  or  repeal  it.  For,  in  §  2, 
Cl.  2,  of  the  Law  of  2  May,  1877,  it  is  expressly  declared  that 
laws  affecting  territorial  affairs,  passed  in  the  way  of  imperial 
legislation,  can  be  amended  or  repealed  only  through  imperial 
legislation.  This  clause  corresponds  to  the  legal  relation 
between  the  legislative  factors  in  both  forms  of  legislation. 
An  imperial  law  for  Alsace-Lorraine,  a  law  touching  matters 
purely  territorial  passed  in  the  form  of  imperial  law,  issues, 
like  every  imperial  law,  from  the  Bundesrat  and  Reichstag,  or, 
to  be  more  accurate,  from  the  Bundesrat  with  the  consent  of 
the  Reichstag.  The  sanction  is  imparted  by  the  Bundesrat. 
A  law  in  Alsace-Lorraine  passed  in  the  form  of  territorial 
legislation  issues  from  the  Kaiser,  with  the  consent  of  the 
Bundesrat,  the  consent  of  the  Territorial  Committee  having 
been  previously  obtained.  In  the  first  case,  the  legislation  for 
Alsace  is  immediate.  In  the  second  case,  it  is  mediate.  That 
is  to  say,  in  the  first  instance  we  have  an  immediate  expression 
of  the  will  of  the  State-power.  In  the  second,  we  have  a 
mediate  expression  of  that  will  through  the  Kaiser,  into  whose 
hands  the  State-power,  with  the  reservation  contained  in 
§  2  of  the  Law  of  2  May,  1877,  nas  been  placed.  The  two 
forms  of  legislation,  therefore,  rest  upon  two  distinct  bases : 
the  one  upon  original,  the  other  upon  derivative,  power. 
Where,  as  in  this  case,  the  delegated  power  is  limited  by  an 
express  reservation,  the  exercise  of  the  reserved  power  by  the 


ALSACE-LORRAINE:    ITS  RELATION  TO  THE  EMPIRE      239 

imperial  legislative  body  must  take  precedence  of  all  action 
on  the  same  subject  by  the  "  Delegatar." 

(3)  By  the  provisions  of  the  Law  of  25  June,  1873,  §  8,1 
the  Kaiser  is  empowered,  until  such  time  as  the  matter  may 
be  regulated  by  imperial  legislation,  to  issue,  with  the  consent 
of  the  Bundesrat,  ordinances  having  the  force  of  law.2  In  the 
exercise  of  this  right  the  Kaiser  is  subjected  to  certain  limi- 
tations. In  the  first  place,  such  ordinances  may  contain  noth- 
ing contrary  to  the  Constitution  or  to  the  imperial  laws  in 
force  in  Alsace-Lorraine,  nor  may  they  relate  to  such  matters 
as  require,  by  the  provisions  of  §  3,  Cl.  2,  of  the  Law 
of  9  June,  187 1,3  the  consent  of  the  Reichstag  for  their  determi- 
nation. In  the  third  place,  such  ordinances  must  be  laid 
before  the  Reichstag,  at  its  next  meeting,  for  its  action. 
Should  ratification  be  refused  by  the  Reichstag,  the  ordinance 
goes  out  of  force.  The  assent  of  the  Reichstag,  on  the  other 
hand,  raises  the  ordinance  to  the  dignity  of  a  law,  which  can- 
not be  amended  or  repealed  by  subsequent  ordinance,  but  by 
law  only.4  This  power  of  issuing  ordinances  having  the  pro- 
visory force  of  law  may  be  exercised  only  while  the  Reichstag 
is  not  in  session.  The  fact  that  the  Territorial  Committee 
may  be  in  session  has  absolutely  no  effect.5 

The  Law  of  7  July,  1887,"  provides  that  where  an  imperial 
law  has  been  introduced  into  Alsace-Lorraine,  and  such  law 
is  subsequently  amended,  through  imperial  legislation,  the 
amendment  may  be  made  effective  in  Alsace-Lorraine  by 

1  RGBl.  p.  160;  GBl.  jiir  E.-L.  p.  131. 

2  "  Verordnungen  mit  interimistischer  Gesetzeskrajt." 

3  Matters  involving  the  assumption  of  loans  or  guarantees  for  Alsace- 
Lorraine  through  which  a  burden  is  laid  upon  the  Empire. 

4  Compare  Leoni,  op.  cit.  p.  164;  Laband,  II.  p.  257. 

6  See  in  this  connection  the  Stenographic  Reports  of  the  Reichstag,  1877, 
Bd.  I.  p.  281.     Compare  remarks  of  Laband,  II.  p.  57. 
•  RGBl.  p.  377. 


240  THE  GERMAN  EMPIRE 

ordinance  of  the  Kaiser,  with  the  consent  of  the  Bundesrat, 
and  the  date  from  which  such  amendment  shall  go  into  force 
may  be  fixed  in  the  ordinance.  The  power  of  the  Kaiser  to 
issue  ordinances  of  this  nature  is  not  subjected  to  the  provi- 
sions of  §  8  of  the  Law  of  25  June,  1873.  These  ordinances 
may  be  issued  while  the  Reichstag  is  in  session  and  need  no 
subsequent  ratification  by  that  body.  They  are  not  in  any 
sense  provisional  —  "  Verordnungen  mil  interimistischer  Ge- 
setzeskraft." 


CHAPTER  XI 
THE  CONSTITUTION  AND  IMPERIAL  FINANCE 

THE  German  Empire,  like  every  other  State,  is  a  juristic 
person,  and,  being  a  juristic  person,  is  capable  of  acquiring, 
holding,  and  disposing  of  property.1  As  the  subject  of  prop- 
erty rights,  the  Empire  is  known  in  German  law  as  the 
Imperial  Fiscus — "Reichsfiskus."*  The  Imperial  Fiscus 
is  not  something  different  from  the  Empire,  it  is  the  Empire 
itself,  viewed  from  the  standpoint  of  private  law.  For,  like 
every  other  State,  the  Empire  is  a  juristic  person  possessed  not 
only  of  certain  public  law  capacities  and  relations,  but  also 

1  On  the  general  subject   of  the  finances  of  the  Empire,  see  Laband, 
Das  Finanzrecht  des  D.  Reiches,  Hirth's  Annalen,   1873,  pp.  405  ff. ;   Id., 
article  "  Reichsfinanzwesen,"  in   Von  Stengel's  Worterbuch  d.  D.  Verwal- 
tungsrechts,  II.  pp.  359  ff. ;  id.,  Staatsr.  IV.  pp.  332  ff. ;  Zorn,  article  "  Reichs- 
finanzwesen,"  in  Holzendorff's    Rechtslexikon,  III.  pp.  375  ff. ;  Von  Mayr, 
article  "  Reichsfinanzwesen,"  in  Conrad's  Handworterbuch  der  Staatswissen- 
schajt,  2d  edition,  1901,  VI.  pp.  360  ff.,  and  the  literature  cited  on  p.  383 
therein. 

2  On  the  "  Reichsfiskus"  see  Laband,  in  Hirth's  Annalen,  1873,  pp.  408  ff. ; 
id.,  article  "Reichsfiskus,"  in  Von  Stengel's  Worterb.  II.  pp.   363  ff. ;   id., 
Staatsrecht,   IV.  pp.   332  ff . ;    Seydel,   article   "  Das    Deutsche    Reich    als 
Privatrechtssubject,"    in    Zeitschrift   jur  die   D.  Gesetzgebung,    1874,   VII. 
pp.  266  ff. ;  Reincke,  article  "  Betrachtungen  uber  die  Entstehung  und  Recht- 
stettung  d.  D.  Reichsfiskus,"  in  Gruchot's  Beilrage  zur  Erlduterung  d.  D. 
Rechts,  XXIII.  1879,  pp.  481  ff. ;   Scholz,  article  "Die  Prozessverteilung  des 
Reichspost-  und  Telegraphenfiskus  "  in  Gruchot's  Beitrage,  etc.,  XL VII.  1903, 
pp.  556  ff. ;    Meyer,   Verwaltungsrecht,  II.  pp.  308  ff. ;     Zorn,   Staatsr.  II. 
p.  220;  Hanel,  Staatsr.  I.  pp.  364  ff. ;  Von  Mayr,  in  Conrad's  Handworterb. 
VI.  p.  361 ;  Otto  Mayer,  Verwaltungsrecht,  I.  pp.  142  ff. ;  Hatschek,  article 
"  Die  rechtliche  Stellung  des  Fiskus  im  Burgerlichen  Cesetzbuch,"  in  Verwal- 
tungsarchiv,  VII.  pp.  424  ff. 

R  241 


242  THE  GERMAN   EMPIRE 

of  certain  private  law  capacities  and  relations.  It  is  with 
reference  to  the  latter  that  one  speaks  of  the  Imperial  Fiscus. 

As  a  subject  of  property  rights,  the  Imperial  Fiscus  is 
a  unit.  It  is  not  to  be  sharply  differentiated  from  the  various 
"Fisci"  of  the  several  administrative  branches  of  the  govern- 
ment, —  the  Postal  Fiscus,  the  Marine  Fiscus,  etc.,  which 
are  simply  different  modes  in  which  the  Imperial  Fiscus 
distributes  its  activity;  but  it  stands  over  against  the  "State 
Fisci,"  from  which  it  is  distinct  and  separate.  The  Fiscus 
in  Alsace-Lorraine  is  also  distinct  and  separate  from  the 
Imperial  Fiscus.  For,  though  the  State-power  in  Alsace- 
Lorraine  belongs  to  the  Empire,  yet  the  financial  administra- 
tion of  the  territory  is  wholly  severed  from  that  of  the 
Empire.1 

Notwithstanding  the  fact  that  the  Imperial  Fiscus  is 
distinct  from  the  State  Fisci,  and  that  the  financial  administra- 
tion of  the  States  is  separate  from  that  of  the  Empire,  it  is 
not  always  a  simple  matter  to  define  the  competence  of  the 
Empire  and  that  of  the  individual  States  so  far  as  the  relation 
of  the  Imperial  Fiscus  to  the  several  State  Fisci  is  concerned. 
That  the  Imperial  Fiscus  and  the  State  Fisci  should  exist 
side  by  side,  each  operating  within  its  own  sphere,  grows 
out  of  the  very  nature  of  a  federal  State.  Where,  however, 
as  under  the  German  Constitution,  certain  of  the  States 
are  granted  special  privileges,  the  demarcation  of  spheres 
of  competence  and  the  determination  of  the  exact  relations 
between  the  Empire  and  the  various  States  are  not  a  little 
difficult. 

It  may  be  laid  down,  however,  as  a  general  principle, 
that  the  rights  and  duties  of  the  Empire  and  of  the  several 

1  See  Laband,  IV.  pp.  334  ff.,  213  ff.  By  the  Law  of  30  March,  1872 
(RGBl.  p.  369),  the  Fisci  of  the  several  Protectorates  (Schutzgebiete)  are  now 
separated  from  the  Imperial  Fiscus. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         243 

States,  so  far  as  property  matters  are  concerned,  follow  the 
lines  of  administrative  competence.  All  matters  to  which 
the  self-government  of  the  States  extends,  fall,  so  far  as 
relations  touching  property  rights  are  concerned,  to  the 
Fiscus  of  the  State,  while  the  rights  and  duties  growing 
out  of  legal  matters  concluded  by  the  imperial  authori- 
ties, so  far  as  these  affect  property,  fall  to  the  Imperial 
Fiscus.1 

As  a  general  rule,  i.e.  unless  otherwise  provided,  the 
Imperial  Fiscus  is  represented  by  the  Imperial  Chancellor. 
In  actual  practice,  the  representation  of  the  Imperial  Fiscus 
is  determined  by  the  organization  of  the  imperial  boards 
and  the  competence  assigned  to  these  boards  and  officials 
by  law  and  ordinance.2  In  suits  at  law  the  representation 
of  the  Imperial  Fiscus  is  regulated  by  the  provisions  of 
administrative  law.  As  a  rule  the  higher  authorities  are 
designated  to  conduct  the  proceedings. 

Although  the  imperial  treasury  is  in  Berlin,  and  the  seat 


1  Laband,  IV.  p.  334;   Von  Mayr,  op.  cit.  p.  361.     It  is  unquestionably 
the  province  of  the  Imperial  Fiscus  to  control  the  administration  of  all 
property  relations  immediately  affecting  the  Empire ;    for  example,  the  ad- 
ministration of  the  "active"  imperial  property,  of  the  imperial  debt,  of  for- 
eign affairs  and  consulates,  of  the  marine,  the  imperial  court   and   other 
boards  so  far  as  property  relations  are  concerned.     So  the  operation  of  the 
imperial  railroads.     The  "Postfiskus"  is  State  Fiscus  in  Bavaria  and  Wiirt- 
temberg,  but  Imperial  Fiscus  in  the  rest  of  the  Empire.     The  property 
affairs  of  the  Insurance  Office,  on  the  contrary,  do  not  fall  within  the  sphere 
of  the  Imperial  Fiscus.     The  Customs  and  Tax  Fiscus  is  State  Fiscus  pure 
and  simple,  even  where  the  revenues  flow  into  the  Imperial  Treasury.     As 
to  the  Military  Fiscus,  there  is  a  division  of  opinion.     The  prevailing  view 
is  that  the  Military  Fiscus  is  Imperial  Fiscus.     Laband  holds  a  different 
view  and  seems  to  have  the  stronger  argument.     See  Laband,  IV.  pp.  335  ff., 
especially  the  references  in  note  3  to  p.  341. 

2  For  discussion  of  the  representation  of  the  Imperial  Fiscus  in  military 
matters,  see  Laband,  IV.  pp.  341,  342,  note  i;   also  Scholz,  in  Gruchot's 
Beitrage,  XL VII.  pp.  556  ff. 


244  THE  GERMAN   EMPIRE 

of  the  Imperial  Chancellor  is  also  in  the  same  city,  yet  the 
status  of  the  Imperial  Fiscus  before  the  court  is  not  deter- 
mined by  that  fact.  Section  18  of  the  Code  of  Civil  Proced- 
ure (Civilprozessordnung)  lays  down  the  principle  that  "the 
general  status  of  the  Fiscus  before  the  court  is  determined 
by  the  seat  of  that  board  (Behorde),  which  is  summoned  to 
represent  the  Fiscus  hi  the  suit  at  law."1 

The  Imperial  Fiscus,  then,  is  the  Empire  itself  manifesting 
its  activity  as  the  subject  of  property  rights.  The  determina- 
tion of  the  board  which  shall  represent  the  Fiscus,  the 
standing  of  the  Fiscus  before  the  courts,  the  question  whether 
it  shall  submit  to  the  application  of  private  law  and  the 
regular  method  of  procedure,  as  well  as  the  privileges  which 
it  may  rlaim,  —  all  these  matters  are  regulated  by  imperial 
legislation,  and  such  legislation,  when  had,  is  exclusive. 
In  all  matters  concerning  the  Imperial  Fiscus,  the  Empire 
takes  precedence  of  the  State,  and  may  be  subjected  to  regu- 
lation by  State  legislation  only  by  its  own  consent.  Where 
there  is  no  imperial  law  controlling  the  matter,  the  following 
principle  holds:  if  the  Imperial  Fiscus,  in  the  adjustment 
and  distribution  of  powers  incident  upon  the  creation  of  a 
federal  State,  has  taken  the  place  of  the  State  Fiscus,  the 
general  legal  principles  which  are  valid  for  the  State  Fiscus 
find  application  to  the  Imperial  Fiscus  as  well.  Whatever 
privileges,  whether  in  the  form  of  processual  advantages, 
privileges  at  private  law,  or  exemptions  from  taxation,  are 
enjoyed  in  the  State  by  its  own  Fiscus,  are,  therefore,  enjoyed 

1  "Der  allgemeine  Gerichtsstand  des  Fiskus  wird  durch  den  Sitz  der 
Behorde  bestimmt,  welche  berufen  ist,  der  Fiskus  in  dem  Rechtsstreite  zu 
vertreten."  See  also  Gaupp,  Komm.  zur  CPO.  4  Aufl.,  1901,  I.  pp.  56  ff. ; 
Scholz,  op.  cit.  pp.  556  ff. ;  Reincke,  op.  cit.  pp.  481  ff. ;  Wach,  Lehrb.  der 
CPO.  I.  pp.  406,  567 ;  Fritze,  Zusammenstellung  der  Behorden,  welche  den 
preuss.  Landfiskus  und  den  D.  Reichsfiskus  im  Prozesse  zu  vertreten  befugt 
sind.,  1891 ;  Seuffert,  Komm.  z.  CPO.  8  Aufl.,  1902,  pp.  19  ff. 


THE   CONSTITUTION  AND   IMPERIAL   FINANCE          24$ 

by  the  Imperial  Fiscus  also.  But  there  is  no  ground  upon 
which  the  Imperial  Fiscus  can  claim  a  more  favorable  position 
than  is  conceded  to  the  State  Fiscus  in  that  same  territory.1 

I.  The  Working  Capital  of  the  Empire 

German  writers  on  the  constitutional  law  of  the  Empire 
are  wont  to  divide  the  property  of  the  Empire  into  two 
classes:  the  administrative  means  (Verwaltungsvermogen) 
and  the  financial  means  (Finanzvermogen).  Under  the 
head  of  administrative  means  are  classed  "all  those  objects 
of  value  which  constitute  the  apparatus  required  in  accom- 
plishing the  constitutional  purposes  and  tasks  of  the  State, 
and  which  belong,  therefore,  to  the  service  of  the  author- 
ities and  to  the  management  of  the  public  institutions  of  the 
State.  The  characteristic  feature  of  this  sort  of  property 
is  that  it  is  not  free,  disposable  capital,  but  is  limited  by  the 
object  for  which  it  is  to  be  spent.  The  financial  means, 
on  the  contrary,  do  not  serve  the  ends  of  the  State  directly, 
but,  through  its  capital  value  (Kapitalswerth)  or  the  revenue 
from  it,  puts  the  government  in  a  position  where  it  can  meet 
a  part  of  the  costs  incidental  upon  carrying  out  State  ends. 
It  is  the  productive  (werbendes]  or  economic  (wirtschaft- 
liches)  means  of  the  State.  The  acquisition,  possession,  and 
administration  of  this  means  does  not  constitute  an  end  of  the 
State,  but  is  simply  designed  to  lighten  indirectly  the  accom- 

1  See  Law  of  25  May,  1873  (RGBl.  p.  113),  §  i,  Cl.  2;  Kriegsleistungs- 
gesetz  vom  13  June,  1873  (RGBl.  p.  129),  §  34.  Compare  Einfiih- 
rungsgesetz  z.  CPO.  vom  30  Jan.,  1877  (RGBL  p.  244),  and  Law  concerning 
changes  in  the  CPO.  of  17  May,  1898  (RGBl.  p.  332),  §  15,  3);  Hanel, 
Staatsr.  I.  p.  366;  Laband,  Annalen,  p.  411;  Seydel,  Zeitschrijt,  VII. 
pp.  236  ff.,  Comm.  p.  384;  Meyer,  Staatsr.  p.  692;  Reincke,  op.  cit. 
pp.  486  ff.  See  also  Stamp  Law  of  i  July,  1881  (RGBl.  p.  185),  §  29,  and 
Law  Relating  to  the  Consular  Jurisdiction,  of  April  7,  p.  1700  (RGBl. 
p.  213),  §  24,  Cl.  i. 


246  THE  GERMAN   EMPIRE 

plishment  of  the  State's  tasks.  The  investment  and  ad- 
ministration of  this  capital,  then,  is  free,  i.e.  determined 
purely  by  political  and  financial  considerations."1  The 
administration  of  the  financial  means  of  the  Empire,  so  far 
as  no  other  provision  is  made,  falls  to  the  Treasury  Office 
of  the  Empire,  while  the  administration  of  the  administrative 
means  is  carried  on  by  the  various  administrative  boards 
within  whose  province  it  may  lie. 

i.  The  Administrative  Means  of  the  Empire.  —  Every 
State,  no  matter  what  its  form  may  be,  requires  a  vast 
amount  of  property,  movable  and  immovable,  devoted 
to  the  service  of  the  various  branches  of  the  government. 
This  array  of  property  forms  the  administrative  equipment 
of  the  State.  It  consists  of  buildings,  office  furnishings, 
apparatus;  in  short,  it  covers  the  thousand  and  one  things 
in  use  in  the  administrative  work  of  the  State.  From  this 
property  no  revenue  is  expected  or  realized.  It  is  this 
characteristic  which  distinguishes  it,  as  already  suggested, 
from  the  purely  financial  operations  of  the  State. 

Like  most  federal  States,  the  German  Empire  was  erected 
out  of  commonwealths,  each  of  which  possessed  its  own 
independent  administrative  organization  and,  as  a  matter 
of  course,  its  own  independent  administrative  equipment. 
On  the  formation  of  the  Empire,  or,  more  properly,  on  the 
formation  of  the  North  German  Confederation,  certain 
branches  of  the  administration  were  handed  over,  either 
wholly  or  in  part,  to  the  federal  government,  with.no  clear 
line  of  demarcation  between  the  rights  of  the  Bund  and  the 
rights  of  the  individual  States  in  the  property  employed  in 
such  administrative  service  after  the  transfer  was  made. 
No  definite  principle  was  laid  down  as  to  the  rights  of  the 
Empire  itself  in  property  used  by  the  Empire  for  the  general 

1  Laband,  IV.  p.  346.     See  also  Meyer,  Verwaltungsrecht,  II.  §  240. 


THE  CONSTITUTION  AND   IMPERIAL   FINANCE          247 

ends  of  imperial  administration.  Nothing  was  said  on  the 
subject  in  the  Constitution  of  the  Bund  or  in  the  Imperial 
Constitution.  The  exceptions  made  in  favor  of  the  South 
German  States  with  reference  to  certain  branches  of  ad- 
ministration rendered  the  situation  still  more  complicated  and 
confusing. 

In  the  Empire  two  distinct  groups  of  administrative 
property  could  be  distinguished :  first,  the  property  which  be- 
longed undoubtedly  to  the  Empire,  since  it  was  acquired  by 
the  Empire  itself  and  had  never  formed  any  part  of  the  equip- 
ment of  a  State;  and,  second,  property  which  belonged  with 
equal  certainty  to  the  several  States,  since  it  had  never  been 
transferred,  in  whole  or  part,  to  the  Empire.  But  between 
these  two  groups  there  was  a  great  mass  of  property  which 
had  belonged,  some  of  it  wholly,  to  some  one  of  the  States, 
and  all  of  which  had  received  repairs,  additions,  and  so  on, 
at  the  hands  of  the  Empire.  To  whom  did  this  property 
belong,  and  what  would  be  its  status  should  it  cease  to  be 
used  for  purposes  of  imperial  administration?  The  prop- 
erty furnished  by  the  Empire  belonged  undoubtedly  to  the 
Imperial  Fiscus.  The  property  employed  in  the  administra- 
tive service  of  the  States  belonged  beyond  all  question  to 
the  State  Fiscus,  in  those  branches  of  administration  which 
had  not  been  transferred  to  the  Empire.  But  here  was  a 
great  bulk  of  property  created  by  the  State  and  in  use  in 
the  service  of  the  Empire.  Did  the  title  pass  with  the  use? 
Did  the  Empire,  with  the  assumption  of  the  administra- 
tion, succeed  also  to  the  property  rights  in  the  equipment 
of  these  administrative  functions?  This  question,  which 
provoked  no  little  discussion  among  German  jurists,1  was 
finally  settled  by  the  "Law  on  the  Legal  Relations  of  Objects 

1  See  discussion  in  Laband,  IV.  pp.  355  ff. ;  Annalen,  p.  426;  Seydel, 
Zeitschrijt,  pp.  230  ff. 


248  THE  GERMAN   EMPIRE 

Devoted  to  the  Service  of  the  Imperial  Administration" 
(Gesetz  uber  die  Rechtsverhaltnisse  der  zum  dienstlichen 
Gebrauche  einer  Reichsverwaltung  bestimmten  Gegenstdnde).1 
This  law  vests  the  property,  in  the  administrative  equipment 
taken  over  from  the  various  States,  in  the  Empire,  but  with 
a  reversionary  right  of  the  individual  State  with  respect  to 
objects  no  longer  in  the  service  of  the  imperial  administra- 
tion. This  law,  as  Laband  observes,  did  not  fuse  all  the 
administrative  equipment  of  the  Empire  into  a  single  mass. 
It  was  parted,  as  before,  into  two  masses,  the  one  distinctly 
and  solely  imperial  and  the  other  originating  in  the  States, 
but  it  did  remove  the  uncertainty  by  denominating  this 
property  no  longer  as  belonging  to  the  Imperial  Fiscus  and 
the  State  Fiscus,  but  as  "dominium  perpetuum  and  dominium 
revocdbile  of  the  Empire." 

The  Law  of  25  May,  1873,  extends  not  only  to  the  objects 
actually  on  the  inventory  of  the  imperial  administration, 
but  it  includes  also  all  objects  which  are  devoted  to  any  con- 
stitutional administrative  service  supported  by  imperial 
means.2  Under  the  decentralized  form  of  administration 
in  vogue  in  the  Empire,  no  small  part  of  the  public  business 
is  carried  on  by  the  administrative  organization  of  the 
several  States.  The  administration,  in  such  cases,  is  not 
imperial,  but  State  administration.  This  is  specially  true 
of  the  military  administration,  to  which  by  far  the  greater 
part  of  the  administrative  means  of  the  Empire  is  devoted. 
There  is  no  imperial  military  administration.  Had  the  Law 
of  25  May,  1873,  extended  only  to  objects  in  the  actual 

1  Law  of  25  May,  1873  (RGBl.  p.  113). 

*  Section  i  of  the  law  reads:  "An  alien  dem  dienstlichen  Gebrauch  einer 
verfassungsmassig  aus  Reichsmitteln  zu  unterhaltenden  Verwaltung  gewid- 
meten  Gegenstanden,  stehen  das  Eigenthum  und  die  sonstigen  dinglichen 
Rechte,  welche  den  einzclncn  Bundesstaaten  zugestanden  haben,  dem 
Deutschen  Reiche  zu." 


THE  CONSTITUTION   AND   IMPERIAL   FINANCE          249 

service  of  the  imperial  administration,  all  the  objects 
devoted  to  the  military  administration  would  have  still 
remained  the  property  of  the  several  States.  The  same 
is  true  of  the  postal  and  telegraph  administration  in 
part,  the  administration  of  which  is  divided  between  the 
Empire  and  the  individual  States.  But  in  the  case  of 
the  military  administration,  and  of  the  administration  of 
the  post  and  telegraph,  the  cost  is  borne  by  the  Empire, 
though  the  actual  administration  is  carried  on  by  the  States, 
either  in  whole  or  in  part.  By  the  terms  of  the  law,  there- 
fore, which  vests  in  the  Empire  the  property  in  all  objects 
devoted  to  any  constitutional  administrative  service  supported 
by  imperial  means,  the  equipment  of  the  military  administra- 
tion, as  well  as  of  the  postal  and  telegraph  administration, 
has  become  and  remains  the  property  of  the  Empire.1 

Although  no  general  distinction  is  made  in  the  law  between 
movable  and  immovable  property,  certain  pieces  of  real 
estate  (Grundstucke)  are  exempted  from  the  law's  operation.2 
The  exceptions  are  as  follows :  — 

(1)  Real  estate   which,   while   employed  in   the   service 
of  the  imperial  administration,  is  devoted  by  the  State  to 
the  use  of  the  ruler  or  to  the  maintenance  of  the  members 
of  the  ruling  House. 

(2)  Real  estate  which,  at  the  time  the  costs  of  administra- 
tion were  assumed  by  the  Empire,  had  been  transferred  to 


1  As  to  the  military  administration,  an  exception  must  be  made  in  the  case 
of  Bavaria,  owing  to  her  peculiar  position  in  the  Empire  and  her  special 
privileges,  and  as  to  the  postal  and  telegraph  administration  an  exception 
must  be  made  in  the  case  of  Bavaria  and  of  Wurttemberg.     Bavaria  adminis- 
ters her  army  at  her  own  expense,  though  in  accord  with  the  general  regula- 
tions laid  down  for  the  rest  of  the  German  army.     The  cost  of  the  postal  and 
telegraph  administration  in  Bavaria  and  Wurttemberg,  are  borne  by  the 
States  themselves.    They  do  not  fall  under  the  Law  of  25  May,  therefore. 

2  Law  of  25  May,  1873,  §  2,  i),  2),  3),  4),  5). 


25O  THE  GERMAN   EMPIRE 

the  administration  of  the  Empire  only  for  a  specified  term,  or 
on  recall,  or  by  way  of  rent. 

(3)  Real  estate  out  of  whose  proceeds  the  expenditures 
made  by  the  State,  for  the  acquiring  of,  or  the  erecting  of, 
buildings  upon  a  piece  of  land  in  the  possession  of  the  same 
imperial  administration,  are  to  be  replaced,  according  to 
the  arrangements  made  on  the  subject. 

(4)  Real  estate  which  at  the  time  of  the  transfer  to  the 
imperial  administration  was  not  in  the  immediate  use  of  a 
branch  of  the  sendee,  but  only  connected  with  it  to  the  extent 
that  the  revenue  accruing  from  the  real  estate  was  placed  to 
the  account  of  that  branch  of  the  service. 

(5)  Real  estate  which  is  partly  in  use  of  the  Empire  and 
partly  in  use  of  the  State,  in  so  far  as  the  joint  use  enjoyed  by 
the  State  is  not  granted  merely  for  a  specified  term,  or  upon 
recall,  or  by  way  of  rent.    The  Empire  does  not  hold  a 
condominium  in  such  property,  but  the  imperial  administra- 
tion holds  the  right  of  use  to  the  extent  granted,  until  such 
time  as  an  agreement  may  be  made  with  the  State  administra- 
tion with  respect  to  a  division  of  the  property,  or  some  other 
arrangement. 

When  a  piece  of  land  has  become  no  longer  indispensable 
to  the  imperial  administration,  or  is  no  longer  serviceable, 
and  there  seems  to  be  no  need  for  a  substitute  to  replace  it, 
then  is  such  real  estate,  in  the  condition  in  which  it  may 
be  at  the  time,  without  expense  and  without  compensation 
for  any  improvement  or  damages,  to  be  returned .  to  that 
State  from  the  possession  of  which  it  was  transferred  to  the 
Empire.1  The  fact  that  a  reversionary  right  belongs  to  the 

1  Law  of  25  May,  1873,  §  6.  This  reversion  does  not  take  place  when 
a  piece  of  land  is  no  longer  needed  by  the  particular  branch  of  the  adminis- 
tration which  has  been  using  it,  but  only  in  case  the  imperial  administration 
can  find  no  further  use  for  it  at  all.  See  Law  of  25  May,  1873,  §  4. 
Laband,  IV.  p.  363,  note  6. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         251 

State  does  not  act  as  a  bar  to  the  alienation  of  such  property 
by  the  Imperial  Fiscus,  should  it  become  unserviceable  or  no 
longer  needed;  but,  in  such  case,  the  Imperial  Fiscus  must 
use  the  proceeds  to  secure  another  piece  of  real  estate,  or 
to  erect  another  building  or  other  buildings  in  the  territory 
of  the  same  State  as  a  substitute  for  the  property  which  has 
become  unserviceable  or  superfluous.1 

When  a  fortification  is  abandoned,  the  land  reverts  to  the 
State  in  whose  territory  it  is  located,  but  only  after  the  neces- 
sary grading  and  levelling  have  been  done  and  the  costs  of 
the  same  repaid.2  These  costs  are  fixed  by  the  highest 
authority  (Behorde)  in  that  branch  of  the  imperial  administra- 
tion in  whose  possession  the  real  estate  may  be.3 

2.  The  Financial  Means  0}  the  Empire.  —  By  "financial 
means"  is  meant,  as  already  suggested,  the  productive  capital 
of  the  Empire,  that  is,  such  means  as  brings  in  an  income 
for  the  Empire.  At  the  time  of  their  founding,  neither 
the  North  German  Bund  nor  the  German  Empire  possessed 
property  of  this  description.  The  immense  war  indemnity 
demanded  of  France  at  the  close  of  the  War  of  1870 
furnished  the  opportunity  for  the  creation  of  means  of 
this  kind. 

(i)    By  the  Law  of  n  November,  1871,*  it  was  provided 

1  Law  of  25  May,   1873,  §  5.    When,  however,  real  estate  which  has 
been  in  the  service  of  the  military  becomes  no  longer  serviceable  or  is  no 
longer  needed,  it  reverts  to  the  State,  and  the  provisions  of  this  §  5  have 
no  application.     It  is  not  necessary  to  provide  a  substitute  for  it  or  to  utilize 
it  for   the  purposes  of   the  navy.      See  Law,  §  7.     Such   pieces   of  real 
property  cannot  be  devoted  to  some  other  branch  of  the  administration. 

2  Law  of   25   May,  1873,  §  7,  Cl.  2.     See  also  Law  of   30  May,  1873 
(RCBl.  p.  123),  with  respect  to  the  transformation  and  equipment  of  German 
fortifications. 

3  Law  of  25  May,  1873,  §  8.     In  this  case,  the  decision  would  be  made  by 
the  highest  authority  in  the  Administration  of  Fortifications. 

4  RGBl.  p.  403. 


252  THE  GERMAN   EMPIRE 

that,  on  condition  of  the  abolishment  of  the  Prussian 
State  Treasure,  the  amount  of  40,000,000  thalers  —  about 
$28,500,000  —  might  be  appropriated  out  of  the  French 
war  indemnity  for  the  creation  of  an  imperial  war  treasure.1 
This  money  was  to  consist  of  gold  coin.  It  could  be  used 
only  for  the  mobilization  of  the  army.2  For  the  expenditure 
of  this  money,  of  any  part  of  it,  an  order  from  the  Kaiser 
must  be  obtained.  This  order  must  issue  with  the  consent 
of  the  Bundesrat  and  Reichstag,  or  their  ratification  of  it 
must  be  subsequently  obtained.3  It  is  not  easy  to  see, 
however,  since  there  is  no  provision  by  law  for  such  a  con- 
tingency, what  the  legal  result  of  a  refusal  to  ratify  such 
expenditure  of  the  War  Treasure  would  be.  The  administra- 
tion of  the  War  Treasure  is  under  the  control  of  the  Imperial 
Debt  Commission,  which  reports  annually  to  the  Bundes- 
rat and  Reichstag  at  their  regular  meeting,  declares  that 
the  yearly  inspection  and  inventory  of  the  War  Treasure 
have  been  made,  and  certifies  to  the  presence  of  the 
120,000,000  marks  in  "gold  coin  of  the  Empire."4 

1  Law  of  ii  November,  1871,  §  i,  Cl.  i.     This  amount  was  accordingly 
set  aside  in  gold  coin  of  the  Empire  and  deposited  in  the  Juliusthurm  at  Span- 
dau,  where  it  is  most  carefully  guarded.     The  Prussian  State  Treasure  was 
abolished  by  the  Prussian  State  Law  of  18  December,  1871  (Gesetzsammlung, 
P-  593)- 

2  This  does  not  necessarily  imply  that  a  war  must  have  already  broken 
out  before  the  Treasure  can  be  used,  nor  does  it  mean,  of  necessity,  that  war 
is  even  imminent.     Any  mobilization  of  the  army,  though  it  be  only  partial, 
is  sufficient  to  justify  a  draft  on  the  funds  in  the  Juliusthurm.     The  fact  that 
Bavaria  occupies  a  peculiar  position  in  the  organization  of  the  German 
army  does  not  shut  that  State  out  from  a  proportionate  amount  of  the  War 
Treasure,  should  the  Bavarian  contingent  be  mobilized.      See  Laband, 
IV.  pp.  348,  349. 

3  Law  of  ii  November,  1873,  §  i,  Cl.  2. 

4  On  the  administration  of  the  War  Treasure  see  Law  of  1 1  November,  1873, 
§3,  and,  in  connection  therewith,  the  Ordinance  of  22  January,  1874  (RCBl. 
p.  9),  amended  by  the  Ordinance  of  31  March,  1897  (RCBl.  p.  169),  §  16  of 


THE  CONSTITUTION  AND   IMPERIAL   FINANCE          253 

The  War  Treasure,  then,  consists  of  a  fixed  and  dead  de- 
posit in  the  vault  of  the  Julius  Tower.  No  current  revenue 
can  be  derived  from  it,  and  it  cannot  exceed  the  amount  set  by 
law — 120,000,000  marks.  Nor  does  the  law  provide  any 
definite  means  of  bringing  the  amount  up  to  the  sum  legally 
fixed,  should  the  treasure  be  diminished.1 

Speaking  strictly,  the  War  Treasure  cannot  be  classed  as  pro- 
ductive funds,  and,  for  that  reason,  hardly  falls  within  the 
definition  of  "financial  means."  It  is,  however,  acquired 
means,  and,  for  the  sake  of  convenience,  has  been  considered 
under  the  general  head  of  the  financial  means  of  the  Empire. 

(2)  In  order  to  meet  the  expenditures  made  necessary  by 
the  law  pensioning  and  otherw.se  providing  for  persons  who 
had  served  in  the  army  or  navy  during  the  war  of  1870-71, 
as  well  as  their  surviving  families,2  the  sum  of  187,000,000 
thalers  —  561,000,000  marks,  or  about  $133,000,000  —  was 
set  aside  by  law  out  of  the  French  War  Indemnity.3  This 
fund  is  called  the  Imperial  Invalid  Fund,  or  Fund  for  the 
Disabled  (Reichsinvalidenfond)  This  fund  was  to  be  in- 
vested in  such  wise  that  there  should  be  a  return  therefrom 
in  the  way  of  interest,  and,  in  order  to  cut  off  the  possibility 
of  speculation  in  these  moneys,  the  law  fixed  the  nature  of 

which  places  the  auditing  of  the  accounts  of  the  administration  of  the  War 
Treasure  in  the  hands  of  the  Court  of  Accounts  (Rechnungshof)  of  the  Empire. 

1  The  Law  of  n  November,  1873,  §  2,  provides  that  in  case  of  a  diminution 
of  the  amount  of  the  Treasure,  such  deficit  is  to  be  made  up  out  of  the  income 
of  the  Empire  other  than  that  flowing  into  the  imperial  treasury  from  those 
sources  of  imperial  revenue  which  are  made  part  of  the  imperial  budget. 
The  raising  of  the  Treasure  to  the  fixed  sum,  therefore,  would  depend  on 
fortuitous  events  such  as  gifts,  etc.,  by  which  the  Reichsfiskus  might  obtain 
money,  or,  through  special  enactment,  from  the  funds  incorporated  in  the 
Reich  shaushaltsetat. 

2  Law  of  27  June,  1871  (RGBl.  p.  275),  to  go  into  effect  i  January,  1873. 

3  Law  of  23  May,  1873  (RGBl.  p.  117).     At  the  end  of  March,  1902,  this 
fund  amounted  to  335,253,900  marks.    Statist.  Jahrb.  for  1903,  p.  221. 


254  THE  GERMAN   EMPIRE 

such  investments.  The  beneficiaries  were  specified  in  the 
Military  Pension  Law  of  27  June,  1871,  to  which  reference 
has  already  been  made,  and  which  was  supplemented  by  the 
Laws  of  4  April,  1874,'  21  April,  i886,2  and  22  May,  1893,' 
transferring  to  this  Fund  the  payment  of  certain  costs  hitherto 
laid  on  the  imperial  treasury. 

The  theory  upon  which  the  Invalid  Fund  was  established 
and  according  to  which  it  has  been  administered,  seems  to  be 
that  not  only  the  interest  on  the  capital  should  be  expended, 
but  that  the  principal  itself  should  gradually  be  consumed.4 
Finding  that  the  proceeds  from  the  invested  funds  were  con- 
siderably more  than  enough  to  meet  the  demands  made  upon 
them,  the  number  and  class  of  beneficiaries  have  been  ex- 
tended by  legislation  covering  a  period  of  years,  until  at  present 
the  expenditures  exceed  the  income.5  Should  the  interest  on 
the  invested  fund  show  a  surplus  at  any  time,  however,  such 
surplus  does  not  and  cannot,  under  the  law,  flow  into  the  In- 
valid Fund,  but  it  is  deposited  in  the  imperial  treasury.* 
On  the  other  hand,  should  an  estimate  made  for  the  ensuing 

1  RGBl.  p.  25.  B  Ibid.  p.  171. 

*  Ibid.  p.  78.  *  Laband,  IV.  p.  532. 

1  Law  of  ii  May,  1877  (RGBl.  p.  495),  §  i ;  2  June,  1878  (RGBl.  p.  100), 
§  4;  17  June,  1878  (RGBl.  p.  127);  30  March,  1879  (RGBl.  p.  119), 
§§  2,  3;  21  April,  18  6  (RGBl.  p.  78),  Arts.,  5,  6;  22  May,  1893  (RGBl. 
p.  171),  Arts.  25,  26;  14  January,  1894  (RGBl.  p.  107),  §§  i,  8;  22  May,  1895 
(RGBl.  p.  237);  i  July,  1899  (RGBl.  p.  339);  31  May,  1901  (RGBl. 
p.  193),  §  24. 

•  See  Law  of  23  May,  1873,  §  7.     The  theory  of  pensions,  according 
to  the  German  "  Finanzpolitik"  is  that  the  payment  of  pensions  is  to  be 
considered  the  same  as  the  payment  of  active  salaries,  so  far  as  the  nature  of 
the  matter  is  concerned.     It  is  simply  a  part  of  the  regular  current  expense, 
and  the  Invalid  Fund  is  a  special  and  exceptional  affair,  covering  certain 
pensions  obligations  by  a  certain  amount  of  special  capital.     These  obliga- 
tions, however,  are  not  created  by,  or  because  of,  the  Fund,  but,  had  no  Fund 
been  existent,  they  would  have  been  met  out  of  the  regular  budget  of  the 
Empire. 


THE   CONSTITUTION   AND   IMPERIAL   FINANCE         255 

year,  part  of  which  was  to  be  met  by  drawing  on  the  principal 
of  the  fund,  prove  too  high,  such  part  of  the  principal  as  was 
appropriated,  but  not  used,  is  not  transferred  to  the  treasury 
of  the  Empire,  but  is  returned  to  the  fund  itself.  Should  the 
time  ever  come  when  the  fund  would  be  no  longer  needed, 
it  would  not  even  then  become,  ipso  facto,  part  of  the  treasury 
funds  of  the  Empire,  but  would  remain  a  free  fund  at  the  sole 
disposal  of  the  legislative  bodies  of  the  Empire.  The  duties 
and  obligations  arising  out  of  the  fund  are  duties  and  obli- 
gations of  the  Imperial  Fiscus,  and  the  income  and  expendi- 
ture of  the  fund  must  be  assumed  annually  in  the  imperial 
budget. 

The  administration  of  the  Invalid  Fund  is  regulated  by  the 
Law  of  23  May,  1873,*  which  provides  for  the  creation  of  a 
board  which  shall  bear  the  name  of  the  "Administration  of 
the  Imperial  Invalid  Fund."  This  board  consists  of  three 
members  and  a  chairman,  the  latter  appointed  by  the  Kaiser, 
and  has  its  seat  in  Berlin.  The  members  of  the  board  are 
held  unconditionally  responsible  for  the  investment,  account- 
ing, and  administration  of  the  fund,  and  are  to  be  sworn  into 
office  at  an  open  session  of  the  Reichsgericht.2  The  oath  con- 
tains an  affirmation  "that  they  will  not  allow  themselves  to 
be  hindered  in  the  discharge  of  the  duties  laid  upon  them,  and 
for  which  they  are  responsible,  by  any  instructions  or  ordi- 
nances of  any  sort  whatever." :  This  board  is  wholly  inde- 
pendent of  and  separate  from  the  general  financial  admin- 
istration of  the  Empire,  but  is  subjected  to  the  "superior 
guidance"  of  the  Imperial  Chancellor,  so  far  as  may  be  done 
without  infringing  on  the  independence  laid  down  in  the  section 

1  Law  of  23  May,  1873  (RGBl.  p.  117),  §  n. 

J  This  law  originally  read  "  Reichsoberhandelsgericht"  but  was   changed 
to  "Reichsgericht"  by  the  Law  of  16  June,  1879  (RGBl.  p.  157),  §§  i,  3. 
3  Law  of  23  May,  1873,  §  12. 


256  THE  GERMAN  EMPIRE 

of  the  law  above  quoted.  This  "obere  Leitung"  of  the  Chan- 
cellor, however,  empowers  him  to  make  binding  orders  and 
decrees  which  the  Administration  of  the  Imperial  Invalid 
Fund  must  obey,1  but  at  the  same  time  the  "unconditional 
responsibility"  of  the  Administration  authorizes  it  and,  in 
fact,  obligates  it,  to  prove,  independently,  these  orders  and 
decrees,  to  see  whether  they  are  in  accord  with  the  legal 
regulations  governing  the  investment,  accounting,  and  ad- 
ministration of  the  fund.  The  orders  and  decrees  of  the 
Imperial  Chancellor  are  to  be  executed  only  when  this  test- 
ing results  affirmatively.2 

The  members  of  the  Administration  of  the  Imperial  In- 
valid Fund  are  elected  by  the  Bundesrat  for  a  term  of  three 
years.  The  office  of  chairman  is  a  salaried  position,  and  the 
incumbent  may  not  hold  any  other  office  at  the  same  time,  or 
conduct  any  business  from  which  he  receives  remuneration.3 
The  members  of  the  Administration  of  the  Imperial  Invalid 
Fund  are  members  of  the  Bundesrat,  who  carry  on  the  work  as 
a  salaried  side  office.4 

The  permanent  control  and  supervision  of  the  administra- 
tion is  assigned  to  the  Imperial  Debt  Commission,  which 
may  at  any  time  satisfy  itself  as  to  the  manner  in  which  the 
funds  are  invested.  The  Commission  receives  monthly  and 
annual  reports  from  the  Administration  of  the  Imperial  In- 
valid Fund,  and  must  make  at  least  one  examination  (Re- 

1  See  Law  of  23  May,  1873,  §§  5,  8;  also  Bekanntmachung  of  LI  June, 
1874  (RGBl.  p.  104),  §§  10,  Cl.  2,  ii,  12,  13,  14,  Cl.  3. 

1  Laband,  I.  pp.  379,  380.  The  responsibility  of  the  Imperial  Chancellor 
with  respect  to  the  Administration  of  the  Imperial  Invalid  Fund  is  the  same  as 
his  responsibility  with  respect  to  the  Administration  of  the  Imperial  Debt. 
See  below. 

3  Law  of  23  May,  1873,  §  11. 

4  Laband,  I.  p.  380.    That  is,  the  members  of  the  Administration  are 
elected  by  the  Bundesrat  out  of  their  own  number. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         257 

vision)  each  year,  and  report  to  the  Reichstag  at  its  annual 
session.  Every  third  year  the  Commission  must  also  lay 
before  the  Reichstag  a  statement  particularly  setting  forth  the 
assets  and  liabilities  of  the  fund.1 

(3)  By  the  terms  of  the  treaty  of  peace  concluded  between 
Germany  and  France  in  1871,  the  German  government  took 
over  the  railroads  in  Alsace-Lorraine,  formerly  the  property 
of  the  French  government,  at  a  valuation  of  325,000,000 
francs,  which  sum  was  to  be  deducted  from  the  war  indemnity 
imposed  on  France.2  By  this  act  these  roads  became  the  prop- 
erty of  the  German  government  and  their  administration  a 
part  of  the  administration  of  the  Empire.  Improvements 
and  extensions  made  by  the  German  government,  for  the  most 
part  out  of  funds  granted  by  the  Empire,  have  brought  the 
total  investment  in  these  railroads  up  to  about  600,000,000 
marks.3 

The  administration  of  the  imperial  railroads  belonged 
originally  to  the  sphere  of  the  Imperial  Chancellor,  but  by  the 
Decree  of  27  May,  1878,*  the  administration  was  removed 
from  the  immediate  supervision  of  the  Imperial  Chancellor 
and  assigned  to  a  special  imperial  office.  The  Prussian 
Minister  of  Public  Works  was  made  head  of  this  board,  thus 
bringing  the  administration  of  the  imperial  railroads  into 
closer  connection  with  the  administration  of  the  Prussian  rail- 
ways. The  actual  administration  of  the  roads  of  Alsace- 

1  Law  of  23  May,  1873,  §  14.      For  carrying  on  this  work,  the   Com- 
mission has  been  enlarged  by  the  addition  of  five  members,  two  of  whom 
are  elected  by  the  Bundesrat  and  three  by  the  Reichstag.     These  members, 
however,  take  no  part  in  the  ordinary  business  of  the  Commission.     Law  of 
23  February,  1876  (RGBl.  p.  24),  §  3. 

2  See  Supplement  to  Treaty  of  Frankfurt,  10  May,  1871,  Art.  i,  §§  2,  6 
(RGBl.  p.  234) ;  Martens,  Nouveau  Recueil  des  Traites,  XIX.  pp.  695-696. 

8  Considerable  contributions  have  been  made  by  Alsace-Lorraine  itself 
for  the  improvement  and  extension  of  the  roads. 
4  RGBl.  1879,  p.  193. 
s 


258  THE  GERMAN  EMPIRE 

Lorraine  is  carried  on  by  the  "General  Directory  of  Rail- 
roads in  Alsace-Lorraine,"  with  its  seat  in  Strassburg.  This 
directory  was  created  by  the  Decree  of  9  December,  187 1.1 
A  report  of  the  amount  spent  on  the  imperial  railroads  is  given 
annually  as  an  appendix  to  the  draft  of  the  Budget  Law. 

In  connection  with  the  administration  of  the  railroads  in 
Alsace-Lorraine,  the  imperial  government  has  also  assumed 
the  operation  of  the  Wilhelm-Luxemburg  railroad  in  the 
Duchy  of  Luxemburg,  under  an  agreement  which  runs  till 
31  December,  iqi2.2  Several  other  small  sections  of  rail- 
road in  Luxemburg  are  also  operated  by  the  Administration 
of  Imperial  Railroads. 

(4)  Certain  funds,  the  general  working  funds  of  the  im- 
perial administration,  constitute  what  is  known  as  the  "  eiserne 
Bestdnde,"  or  permanent  funds  of  the  Empire.    They  were 
created  by  the  Budget  Law  of  1872,  and  have  been  increased 
as  need  has  demanded.     These  funds  are  moneys  which  have 
not  been  absorbed  by  the  imperial  administration,  in  fact, 
they  are  a  treasury  surplus,  at  the  free  disposal  of  the  Empire. 
This  sum,  the  "  Betriebsfonds,"  as  it  is  called,  is  divided  into 
five  sub-funds:    the  Imperial  Treasury  Fund,  for  meeting 
imperial  operations  for  which  no  special  fund  is  designated, 
the    Legation    Fund,    the    Imperial    Printing-office    Fund, 
the  Fund  for  Postal  and  Telegraph  Administration,  and  the 
Fund  for  the  Equipment  of  Troops. 

(5)  Certain  special  property  of  the  Empire  must  also  be 
mentioned,3  to  wit,  (a)  the  Deutscher  Reichs-  und  Preuss- 
ischer  Stoats- Anzeiger,  a  daily  paper,  published  in  Berlin, 

1  RGBl.  p.  480.     See  also  Decree  of  27  May,  1878  (RGBl.  1879,  p.  193). 

*  See  Treaty  of  Frankfurt,  Supp.  Art.  i,  §  §  2,  6  (RGBl.  p.  234) ;  Mar- 
tens, Nov.  Rec.  des  Trait.  XIX.  pp.  695,  696.    Law  of  15  July,  1872  (RGBl. 
p.  329).     For  further  particulars  as  to  the  terms  on  which  these  railroads 
are  operated  by  the  German  government,  see  Treaty  of  Frankfurt,  §  12. 

*  Certain  funds,  formerly  of  importance,  but  whose  significance  in  the 


THE  CONSTITUTION  AND   IMPERIAL  FINANCE         259 

and  serving  as  the  medium  through  which  official  proclama- 
tions are  brought  to  public  notice.  Up  to  1889  the  proceeds 
from  the  publication  of  this  paper  were  divided  between  the 
Empire  and  Prussia,  two-thirds  going  to  Prussia  and  one- 
third  to  the  Empire.  Since  1889  the  di vision  has  been  equal. 

(6)  The  Imperial  Printing-office  (Reichsdruckerei},  which 
was  created  under  the  Law  of  23  May,  1877,*  in  which  the 
Imperial  Chancellor  was  authorized  to  purchase  a  certain 
private  printing  establishment  in  Berlin.  To  this  establish- 
ment was  added,  by  the  Law  of  15  May,  1879,  the  Printing- 
office  of  Prussia,  and  the  two  were  consolidated  into  the  Im- 
perial Printing-office.  While  this  office  is  designed  primarily 
for  the  service  of  the  Empire  and  of  Prussia,  yet  it  is  permitted 
to  publish  private  works,  the  issuance  of  which  may  be  re- 
garded as  an  aid  to  science  or  art.2  The  Imperial  Printing- 
office  is  administered  by  a  board  which  is  placed  under  the 
control  of  the  Imperial  Post-office.  This  Board  is  called  the 
Directory  of  the  Imperial  Printing-office.3 

II.  The  Imperial  Income.  —  In  speaking  of  the  income  of 
the  Empire,  Art.  70  of  the  Imperial  Constitution  does  not  use 
the  phrase  "imperial  income"  or  "income  of  the  Empire," 
but  prefers  to  employ  the  term  "common  income"  or  "com- 
munity income"  or  "join  income."  The  word  is  " gemein- 
schajtliche."  At  any  rate,  what  is  meant  is  that  revenue  which 
flows  from  various  sources  into  the  treasury  of  the  Empire, 

finances  of  the  Empire  is  now  little  or  nothing,  are  omitted  from  consideration. 
These  funds  were  created  out  of  the  French  war  indemnity,  and  with  one 
exception  —  aside  from  the  Invalidenjond  —  have  already  been  consumed. 
See  Laband,  IV.  p.  384,  note  i ;  Von  Mayr,  in  Conrad's  Handivorterbuch, 
VI.  p.  365 ;  Meyer,  Verwaltungsrecht,  II.  p.  314. 

1  RGBl.  p.  500. 

2  "  Die  Bestimmungen  uber  den  Umfang  des  Betriebs  der  Reichsdruckerei 
werden  alljahrlich  durch  den  Reichshaushaltsetat  getroffen."     Law  of  15 
May,  1879  (RGBl.  p.  139),  §  3. 

3  Proclamation  of  29  July,  1879  (Centralbl.  d.  D.  R.,  1879,  p.  493). 


260  THE  GERMAN   EMPIRE 

is  used  for  imperial  purposes  under  the  laws  and  Constitu- 
tion of  the  Empire,  and  lies  wholly  outside  the  financial  sys- 
tem and  financial  control  of  the  several  States.  This  common 
income,  spoken  of  in  Art.  70  of  the  Constitution,  includes 
the  following:  (i)  the  revenues  from  the  tariff,  or  customs,  and 
from  the  five  great  "  Consumption  Taxes,"  the  tax,  that  is, 
on  salt,  tobacco,  sugar,  beer,  and  brandy;  (2)  the  profits  from 
the  postal  and  telegraph  service ;  (3)  the  profits  from  the  oper- 
ation of  the  imperial  railroads,  including  the  leased  lines  in 
Luxemburg;  the  profits  from  the  Imperial  Printing-office 
and  from  the  publication  of  the  Reichs-  und  Staats-Anzeiger ; 
the  profits  from  coinage  and  the  net  earnings  of  the  Imperial 
Bank;  (4)  the  interest  and  extras  from  the  Invalid  Fund  and 
from  moneys  invested  by  the  Empire ;  (5)  fees  from  various 
imperial  offices  and  boards,  e.g.  the  fees  from  the  Imperial 
Court,  the  Patent  Office,  consulates,  etc.;  (6)  returns  from 
the  leasing  or  renting  of  administrative  buildings,  etc., 
and  the  proceeds  from  the  sale  of  property  no  longer  needed 
or  serviceable  for  administrative  purposes;  (7)  the  contribu- 
tions of  individual  States  to  certain  imperial  expenses, 
such  as  the  Prussian  contribution  to  the  North  Sea  Canal, 
and  that  of  Alsace-Lorraine  to  the  Imperial  Treasury  Office 
and  the  Court  of  Accounts ;  (8)  the  revenue  from  the  Imperial 
Stamp  Tax  and  from  the  so-called  Statistical  Tax,  as  well  as 
from  the  tax  on  bank-notes ;  (9)  the  surplus,  if  any,  from  the 
preceding  year;  (10)  imperial  loans.1 

It  should  be  noted  that  Bavaria  has  no  share  in  the  income 
from  the  administration  of  the  imperial  army  and  of  the  gen- 
eral military  pension  fund,  for  the  reason  that  the  financial 
administration  of  military  affairs  is  not  "joint"  between 
Bavaria  and  the  other  States.  Further,  Bavaria  and  Wiirttem- 
berg  have  no  share  in  the  profits  of  the  postal  and  telegraph 

1  See  Laband,  IV.  p.  383. 


THE   CONSTITUTION  AND   IMPERIAL   FINANCE          26 1 

administration.  Bavaria,  Wtirttemberg,  Baden,  and  Alsace- 
Lorra:ne  do  not  share  in  the  revenue  from  the  tax  on  beer,  nor 
from  the  transit  dues  on  beer,  nor  do  these  States  share  in  the 
"aversa"  paid  in  lieu  of  this  tax  by  those  districts  of  the  Em- 
pire excluded  from  the  Zollgebiet,  or  general  Customs  Dis- 
trict. The  "special  privileges"  conceded  to  certain  States 
operate  also  with  respect  to  any  surplus  which  may  exist 
from  a  preceding  year,  for  those  States  cannot  profit  by  a  sur- 
plus arising  out  of  revenues  in  part  affected  by  these  "Son- 
derrechte"  or,  in  other  words,  those  States  enjoying  special 
privileges  have  no  share  in  the  distribution  of  a  surplus  which 
has  arisen,  at  least  in  part,  from  revenues  in  which  they  have 
no  rights.  A  discrimination  is  made,  therefore,  based  on  the 
source  of  the  surplus.  The  same  principle  obtains  also  with 
respect  to  loans  assumed  by  the  Empire.1 

i.  The  Customs  and  the  Consumption  Taxes.2  —  In  the 
realization  of  German  unity,  in  the  creation  of  the  North 
German  Bund  and  of  the  Empire,  the  r61e  played  by  the  Zott- 
verein,  or  Customs  Union,  can  hardly  be  overestimated. 
Long  before  the  North  German  Bund  had  welded  the  greater 
part  of  Germany  into  a  political  integer,  the  adoption  of  iden- 
tical tariff  laws,  a  similarity  of  customs  administration,  and  a 
community  of  revenue  had  paved  the  way  for  that  mighty 
event.  "The  German  Zollverein  was  not  only  a  powerful 
bond  that  held  together  the  majority  of  the  German  States 
during  the  time  when  they  were  sovereign ;  it  was  not  only, 

1  See  Laband,  IV.  p.  384. 

2  See  on  this  subject  Aufsess,  Die  Zolle  und  Steuern  des  D.  Reiches,  in 
Hirth's  Annalen,  1893,  also  in  new  form,  Aufsess-Weisinger,  Die  Zolle  und 
Steuern  d.  D.  R.,  5  Aun.,Munchen,  1900;  Von  Mayr,  Zollabgaben,  in  Stengel's 
Worterb.  II.  pp.  937-955;  Delbriick  (Rudolf),  Artikel  40  der  D.  RVerf.,  Ber- 
lin, 1881;  Laband  IV.  pp.  384  ff.;  Hanel,  Staatsr.  I.  pp.  389  ff. ;   Seydel, 
Comm.  2  Aufl.,  pp.  218  ff . ;  Wagner,  Finanzwissenschaft,  IV.  4,  2),  pp.  655  ff. ; 
Meyer,  Verwaltungsrecht,  II.  pp.  319  ff. 


262  THE  GERMAN   EMPIRE 

from  an  economic  and  political  viewpoint,  a  preparatory  stage, 
out  of  which  the  reconstruction  of  Germany  proceeded  along 
State  lines;  but  the  institutions  built  up  in  the  Zollverein 
were,  in  great  measure,  taken  over  into  the  Constitution  of  the 
Bund,  and  form  to  this  day  a  permanent  part  of  the  constitu- 
tional law  of  the  Empire.  The  history  of  the  Zollverein  may 
be  called  with  right  the  antecedent  history  of  the  German 
Empire."  l 

Article  40  of  the  Imperial  Constitution  declares  that  "the 
provisions  of  the  Customs  Union  Treaty  (Zollvereinigungs- 
vertrag]  of  8  July,  1867,  shall  remain  in  force,  so  far  as  they 
are  not  amended  by  the  provisions  of  this  Constitution  and  so 
long  as  they  are  not  altered  in  the  manner  prescribed  in  Art. 
7  or  Art.  78  of  this  Constitution."  This  declaration  main- 
tains the  continuity  between  the  former  Zollverein  and  the 
tariff  system  of  the  Empire.  The  fundamental  principles 
of  the  imperial  tariff  organization  are  borrowed  directly 
from  the  Zollverein,  and  the  provisions  of  the  Customs  Union 
Treaty  still  have,  for  the  most  part,  material  force. 

Notwithstanding  the  fact  that  the  content  of  the  treaty 
of  1867  remains  in  force  to  such  an  extent,  it  must  not  be  in- 
ferred that  the  tariff  organization  of  the  Empire  rests,  for 
that  reason,  upon  a  mere  contractual  basis.  This  point  is 
argued  clearly  by  Laband,2  from  whose  discussion  the  follow- 
ing somewhat  lengthy  paragraphs  are  quoted :  "  By  the  found- 
ing of  the  North  German  Bund,  the  Zollverein,  as  it  was  finally 
constituted  by  the  Treaty  of  16  May,  1865,  was  certainly  trans- 

1  Laband,  IV.  pp.  384-385.  On  the  history  of  the  Zollverein,  see  Treitschke, 
Deutsche  Gesch.  im  XIX  Jahrh.,  3  Aufl.,  III.  pp.  603  ff.,  IV.  pp.  350  ff.;  Von 
Festenberg-Packisch,  Gesch.  des  Zollver.,  Leipzig,  1869;  Weber,  Gesch.  d. 
Zollver.,  2  Aufl.,  Leipzig,  1872;  Thudichum,  Verfassungsrecht  des  Nor dd. 
Bundes  und  des  Deutschen  Zollver.,  Tubingen,  1870;  Hoffmann,  Deutsches 
Zollrecht,  Bd.  I.,  Leipzig,  1900. 

1  Laband,  IV.  pp.  385  ff. 


THE  CONSTITUTION   AND   IMPERIAL   FINANCE          263 

formed  very  considerably,  so  far  as  the  States  entering  the 
North  German  Bund  and  the  South  German  States  were 
both  concerned.  With  respect  to  the  former,  a  collective  rela- 
tion was  replaced  by  a  State  relation.  A  constitution  took  the 
place  of  an  agreement.  Instead  of  the  right  of  withdrawal 
after  giving  due  notice,  instead  of  the  formation  of  an  associa- 
tion to  run  for  a  definite  time,  there  was  created  a  permanent 
relation  which  could  not  be  terminated  upon  notice.  In 
place  of  the  requirement  of  unanimous  consent  to  all  amend- 
ments of  the  tariff  laws  or  changes  of  tariff  arrangementSj 
there  was  introduced  the  method  of  law  and  ordinance.  In- 
stead of  distributing  the  revenue  from  the  tariff,  and  from  the 
consumption  taxes,  among  the  members  of  the  Verein,  the  in- 
come was  now  applied  to  settling  the  expense  account  of  the 
Bund.  Although  the  North  German  Bund  retained,  in  the 
main,  the  principles  in  accordance  with  which  the  administra- 
tion of  the  customs  and  the  levying  of  customs  duties  and 
taxes  were  regulated,  yet  the  Verein,  as  such,  no  longer  existed 
between  the  members  of  the  Bund.  It  was  absorbed  by  the 
political  unity  of  the  Confederation.  A  practical  and  specially 
important  result  of  this  doctrine  is  seen  in  the  fact  that  the 
unitary  regulation  of  the  customs  was  applied  to  those  States 
also,  and  to  those  sections  of  the  North  German  Bund,  which 
had  not  belonged  to  the  Zollverein,  so  far  as  the  Constitution 
of  the  Bund  itself  did  not  make  an  exception.1  So  far  as  the 
South  German  States  were  concerned,  although  it  actually 
continued  during  the  war  of  1866,  the  Zollverein  was  legally 
dissolved  by  the  outbreak  of  hostilities  and  by  the  political 
collapse  of  some  of  its  members.  In  the  individual  treaties 
with  Prussia  (Art.  7  of  these  treaties),  this  was  generally  recog- 
nized by  the  South  German  States,  but  it  was  agreed  at  the 
same  time  that  the  Customs  Union  Treaties  should  again 
1  See  Verj.  N.  G.  B.  Art.  40,  Cl.  2. 


264  THE  GERMAN   EMPIRE 

come  into  force,  with  the  reservation  that  either  party  to  the 
contract  might  dissolve  it  at  any  time  upon  six  months'  notice. 
This  right  of  notice  Prussia  used  as  a  handle  to  bring  about  a 
reform  in  the  Zollverein,  and  the  Prussian  government  suc- 
ceeded in  carrying  through  the  ' Zollvereinigungsvertrag' 
of  8  July,  1867.  This  treaty  was  concluded  between  five 
contracting  parties :  the  North  German  Bund  and  the  four 
South  German  States.  It  created  a  union  with  a  determinate 
limit  —  to  31  December,  1877,  which  could  be  extended, 
however,  tacitly,  by  periods  of  twelve  years.  It  preserved 
the  agreements  of  the  old  Customs  and  Commercial  Union 
treaties  in  force,  so  far  as  they  were  not  altered  by  the  new 
treaty  itself.  For  transacting  the  business  of  the  Union,  the 
forms  and  organs  of  the  North  German  Bund  were  adopted.1 
"  With  the  founding  of  the  Empire,  this  Union  also  came  to  an 
end.  The  legal  relation  of  its  members  was  transformed  just 
as  the  relation  of  the  members  of  the  older  Union  was  trans- 
formed by  the  erection  of  the  North  German  Bund.  It  is 
true  that  the  express  wording  of  Art.  40  of  the  Imperial  Con- 
stitution provides  that  the  regulations  of  the  Customs  Union 
Treaty  of  8  July,  1867,  shall  remain  in  force  so  far  as  they  are 
not  altered  by  the  Constitution  itself ;  but  the  fundamental 
principle  that  the  Empire  shall  constitute  a  single  customs  and 
commercial  district,  the  exclusive  authority  of  the  Empire 
to  legislate  in  matters  touching  the  customs  and  the  consump- 
tion taxes  laid  down  in  Art.  38  of  the  Constitution,  the  right 
of  the  Bundesrat  to  issue  ordinances,  the  supervision  :of  the 
authorities  of  the  several  States  by  the  Kaiser,  etc.,  are  con- 
stitutionally fixed,  and  have  nothing  to  do  with  a  term  limit, 
made  dependent  on  the  will  of  the  individual  States.2  The 
reference  to  the  provisions  of  the  Customs  Union  Treaty  in 
Art.  40  of  the  Imperial  Constitution  must  not  mislead  one  into 

1  See  Thudichum,  of.  cit.  pp.  581  ff.         *  See  Hanel,  Studien,  I.  pp.  123  ff. 


THE  CONSTITUTION  AND   IMPERIAL  FINANCE          265 

the  mistaken  notion  that,  in  addition  to  the  constitutional  bond 
which  unites  the  Empire,  there  exists  also  a  special  tariff 
connection  between  the  German  States,  based  on  contract. 
The  content  of  these  provisions  is  of  small  moment,  so  far  as 
this  point  is  concerned.  Everything  that  may  become  the  con- 
tent of  a  law  may  also  be  made  the  content  of  a  treaty  be- 
tween States,  and  vice  versa.  The  legal  ground  upon  which 
the  binding  force  of  the  provisions  rest  is  alone  decisive,  — 
whether  upon  the  mutual  pledges  of  equal  contracting  parties 
or  upon  the  order  of  a  superior  State-power,  —  and  this  legal 
ground  has  been  changed  by  the  precise  fact  that  it  is  the  Con- 
stitution which  has  retained  the  provisions  of  the  Customs 
Union  Treaty  in  force.  The  important  practical  result  from 
this  fact  is  drawn  by  Art.  40  itself,  viz.  that  these  provisions 
remain  in  force  '  so  far  as  they  are  not  changed  by  the  provi- 
sions of  this  Constitution  and  so  long  as  they  are  not  amended 
in  the  way  prescribed  in  Art.  7  or  Art.  78.'  Hence,  for  the 
amendment  of  these  provisions  of  the  Treaty,  the  consent  of 
all  the  States  is  not  necessary,  nor,  in  case  the  Reichstag 
refuses  its  consent,  is  the  consent  of  all  the  States  sufficient. 
The  extension  of  these  provisions  to  Alsace-Lorraine  by  way 
of  ordinary  legislation  confirms  the  fact  that  here  we  have  to 
do  with  imperial  law,  not  with  treaty  rights.  But  the  possi- 
bility is  not  excluded,  however,  that  certain  provisions  con- 
tained in  the  Customs  Union  Treaty  may  create  special  rights 
for  individual  States,  whose  amendment  can  be  secured  only 
with  the  consent  of  the  State  affected  "  (RVerf.  Art.  78,  Cl.  2). 
The  simple  declaration  of  Art.  40  involves  far  more  than  at 
first  appears.  And  for  this  reason:  the  Treaty  of  8  July, 
1867,  does  not  contain  an  explicit  statement  of  the  laws  and 
regulation  which  it  itself  covers.  Article  i  of  the  Treaty  says : 
"  The  Customs  Union  Treaties  of  22  and  30  March  and  1 1  May, 
1833,  of  12  May  and  10  December,  1835,  of  2  January,  1836, 


266  THE  GERMAN   EMPIRE 

of  8  May,  19  October,  and  13  November,  1841,  of  4  April, 
1853,  and  16  May,  1865,  as  well  as  the  separate  articles  be- 
tween the  contracting  parties  which  belong  to  these  treaties, 
shall  remain  in  force  so  far  as  they  were  still  in  force  and  are 
not  amended  by  the  article  following."  Further,  Art.  i  of 
the  Final  Protocol  of  the  Treaty  of  8  July,  1867,  declares  that 
"  the  agreement  made  in  Art.  i  of  this  Treaty,  with  respect 
to  the  operation  of  the  treaties  therein  named,  shall  extend 
also  to  those  more  particular  provisions  and  agreements  con- 
tained in  the  protocols  belonging  to  each  of  those  treaties, 
as  well  as  to  all  agreements  whatever  made  in  pursuance  of  the 
Customs  Union  Treaties,  for  the  execution  of  the  same  and 
for  the  further  development  of  the  Union."  * 

It  will  be  seen,  then,  that  in  order  to  a  definite  and  clear 
understanding  of  the  scope  of  Art.  40  of  the  Imperial  Con- 
stitution, a  detailed  study  of  the  various  treaties  cited  must 
be  made.  For,  according  to  Art.  40,  each  and  every  agree- 
ment made  by  the  members  of  the  Customs  Union  since  22 
March,  1833,  not  specifically  amended  by  subsequent  treaty 
or  legislation,  is  still  in  force.  The  final  appeal  in  questions 
arising  under  Art.  40,  therefore,  is  not  to  Art.  40  itself,  nor 
to  the  Treaty  of  8  July,  1867,  to  which  it  makes  specific  ref- 
erence, but  to  all  the  treaties,  protocols,  and  enactments  of 
the  General  Conference  of  the  Customs  Union  since  i833-2 

The  effect  of  Art.  40  is  to  change  the  character  of  those 

1  The  Treaty  of  8  July,  1867,  together  with  the  Final  Protocol,  is  found  in 
BGBl.  1876,  p.  81 ;  also  in  Triepel,  p.  23.  The  other  treaties  mentioned  in 
Art.  i  of  this  Treaty  may  be  found  in  the  Vertrdge  und  Verhandlungen  iiber 
die  Bildung  und  Ausjiihrung  des  Deutschen  Zoll- und  Handelsvereins,  Berlin, 
1845-72,  I.  pp.  i,  112,  177;  II.  pp.  i,  200,  269;  III.  pp.  i,  214,  284;  IV.  p. 
i ;  V.  p.  43. 

J  The  Treaty  of  16  May,  1865,  contains,  fortunately,  a  codification  of  the 
most  important  provisions  of  the  preceding  treaties  and  agreements  in  force, 
which  much  simplifies  the  matter. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         267 

provisions  which  remain  in  force.  What  had  rested  upon  a 
basis  of  contract  hitherto,  a  basis  of  international  law,  now 
rests  upon  a  basis  of  constitutional  law.  These  provisions 
can  no  longer  be  amended  by  mutual  agreement  between 
the  members  of  the  Union,  —  that  Union  ceased  to  exist  with 
the  founding  of  the  Empire,  —  but  only  by  the  method  of 
legislation  as  prescribed  by  Art.  7  of  the  Imperial  Constitution, 
or,  if  their  amendment  involves  also  an  alteration  of  the  Con- 
stitution itself,  by  the  method  laid  down  in  Art.  78.  What, 
therefore,  had  been  an  agreement  between  contracting  parties, 
sanctioned  by  international  law,  has  become,  in  some  instances, 
a  part  of  the  law  of  a  State,  and  in  other  instances,  an  integral 
part  of  the  Constitution  of  that  State.  It  would  far  tran- 
scend the  scope  and  limits  of  this  study,  should  an  attempt 
be  made  to  specify  the  particular  articles  which  come  under 
consideration  and  to  classify  them  according  to  their  legal 
character.1  It  may  be  said,  in  general  terms,  that  so  far  as 
the  provisions  of  the  various  treaties  which  are  maintained 
in  force  contain  regulations  touching  matters  which  do  not 
fall  within  the  legislative  competence  of  the  Empire,  consti- 
tutionally, they  must  be  regarded  as  incorporated  into  the 
Constitution  as  part  and  parcel  of  it,  and  any  amendment 
is  an  amendment  of  Art.  40  itself  and  may  be  accomplished 
only  in  the  method  constitutionally  provided  for  such  amend- 
ment. Further,  provisions  regulating  the  rights  of  the  several 
States  as  against  the  Empire  in  matters  of  customs  must 
also  be  regarded  as  constitutional  regulations.2  So  far  as  the 
provisions  of  the  Customs  Union  Treaties  touch  matters 

1  This  has  been  done  exhaustively  by  Delbriick,  in  his  monograph  already 
cited,  and  by  Hanel,  Studien,  I.  pp.  120  ff. 

2  See   in  this   connection  Delbriick,  op.  cit.  pp.  80  ff . ;   Hanel,  op.  cit. 
p.  136.     Compare,  however,  Hanel,  Staatsr.  p.  55,  and  Meyer,  Veru-altsr.  II. 
p.  321,  note  6,  as  to  the  relation  of  Arts.  18  and  19  of  the  Treaty  of  8  July, 
to  Art.  36  of  the  RVerf.     Laband,  IV.  p.  390. 


268  THE   GERMAN   EMPIRE 

which  lie  within  the  legislative  competence  of  the  Empire 
under  the  Constitution,  they  may  be  amended  or  repealed 
in  the  way  of  ordinary  legislation.  They  constitute  a  group 
of  regulations,  therefore,  with  the  force  of  simple  law.1  In 
reading  the  Treaty  of  16  May,  1865,  it  will  be  noted  that  a 
classification  has  therein  been  made  with  respect  to  the  adopted 
regulations.  This  classification  falls  into  two  groups  and 
has  been  made  on  the  following  principle:  all  stipulations 
which  have  been  invested  by  the  contracting  governments 
with  a  formal  legislative  character  are  incorporated  into  the 
body  of  the  Treaty,  while  regulations  of  an  administrative 
nature  are  placed  in  the  Final  Protocol.  This  arrangement 
is  also  found  in  the  Treaty  of  8  July,  1867.  The  effect  of 
this  arrangement  is  simply  this :  those  stipulations  which  are 
incorporated  into  the  body  of  the  Treaty  of  1867,  together 
with  those  provisions  which  are  therein  declared  to  be  a  part 
of  that  Treaty,  have  the  force  of  formal  law ;  while  the  stipu- 
lations relegated  to  the  Final  Protocol  have  the  force  of 
administrative  ordinances.2 

From  this  continuity  between  the  Empire  and  the  Zollverein 
have  arisen  the  principles  which  underlie  the  general  tariff 
system  of  the  Empire :  the  territory  of  the  Empire  consti- 
tutes a  single  customs  and  commercial  district,  bounded  by  a 
common  customs  boundary,  within  which  all  traffic  and  trade 
shall  be  free ; 3  all  tariff  legislation  is  unitary  and  falls  within 
the  exclusive  competence  of  the  Empire ; 4  and,  finally,  the 
collection  and  administration  of  the  customs  duties  and  con- 

1  Laband,  IV.  p.  390;   Hanel,  Studien,  I.  131. 

1  Laband,  IV.  p.  391;  Hanel,  Studien,  I.  pp.  126  £f. ;  Delbriick,  op.  cit. 
pp.  5  8. 

8  RVerf.  Art.  33. 

4  Ibid.  Art.  35.  This  includes  also  the  ordinances  and  provisions  re- 
specting the  administration  of  the  tariff  laws  and  their  execution,  issued  by 
the  Bundesrat.  See  Art.  37,  also  Art.  7  of  the  RVerf. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         269 

sumption  taxes,  under  imperial  laws  and  ordinances,  are  left 
to  the  several  States,  the  right  of  supervision  being  reserved 
to  the  Emperor.1  These  three  principles  must  be  briefly 
discussed. 

(i)  Section  VI.  of  the  Imperial  Constitution,  which  deals 
with  matters  of  tariff  and  trade,  opens  with  the  following  state- 
ment, which  constitutes  the  first  sentence  of  Art.  33 :  "  Ger- 
many forms  a  single  customs  and  commercial  district,  bounded 
by  common  tariff  limits."  In  other  words,  according  to  the 
intention  of  the  Constitution  the  boundary  of  the  customs 
jurisdictions  coincides  with  the  boundary  of  the  Empire.  In 
actual  practice,  however,  this  rule  is  modified,  since  territory 
which  does  not  belong  to  the  Empire  is  included  within  the 
tariff  district,  and  territory  which  does  belong  to  the  Empire 
is  excluded.  To  the  former  category  belong  portions  of 
foreign  territory,  to  wit,  Luxemburg  and  the  Austrian  Com- 
munes of  Jungholz  and  Mittelberg,  the  so-called  "Zollannexe."2 

1  RVerf.  Art.  36.     Compare  Treaty  of  8  July,  1867,  Art.  3,  §  6;  Art.  19; 
also  Art.  20,  and  the  Final  Protocol,  No.  15. 

2  The  Grand  Duchy  of  Luxemburg  enjoys  the  benefits  of  the  German 
States  so  far  as  the  tariff  is  concerned,  by  reason  of  the  Treaty  of  20-25 
October,  1865  (Pr.  G.  S.  1866,  p.  207),  concluded  with  Prussia,  acting  in 
the  name  of  all  the  members  of  the  Union.     On  the  founding  of  the  Empire 
the  continuance  of  this  relation  was  recognized  in  the  Agreement  of  n  June, 
1872,  §  14  (see  Law  of  15  July,  1872,  RGBl.  p.  329),  relative  to  the  taking 
over  by  the  Empire  of  the  Wilhelm-Luxemburg  railroad  operation.  This 
relation  is  to  continue  so  long  as  the  administration  of  the  road  remains  in 
the  hands  of  the  Empire,  that  is,  under  the  terms  of  the  agreement,  at  least 
to  31  December,  1912.     The  Commune  of  Jungholz,  belonging  to  Austria, 
was  included  in  the  tariff  and  indirect  tax  system  of  Bavaria  by  a  treaty  be- 
tween Bavaria  and  Austria,  3  March,  1868.     That  is  to  say,  its  relations  were 
directly  with  Bavaria  and  only  indirectly,  or  mediately,  with  the  Empire. 
(See  Bav.  RegBl.  1868,  pp.  1183,  1241.)    There  is  no  treaty  between  the 
Empire  and  Austria  over  the  matter.     In  the  case  of  the  Austrian  Commune 
of  Mittelberg,  however,  its  inclusion  with  the  German  tariff  district  is  based 
on  a  treaty  between  the  Empire  and  Austro-Hungary,  of  2  December,  1890 
(RGBl.  1891,  p.  59).     Mittelberg  is  treated,  so  far  as  the  customs  duties  are 


2/0  THE   GERMAN   EMPIRE 

To  the  second  category  belong  what  are  known  as  "Zollex- 
claven"  that  is,  certain  portions  of  the  Empire  excluded  from 
the  tariff  jurisdiction.  These  Exclaven  are  expressly  recog- 
nized by  the  Imperial  Constitution,  and  fall  into  two  classes. 
The  first  class  is  described  in  Art.  33  of  the  Constitution,  the 
first  clause  of  which  reads:  "Those  peculiar  portions  of  the 
territory,  which,  on  account  of  their  location,  are  not  adapted 
to  incorporation  within  the  tariff  boundaries,  remain  ex- 
cluded." These  Exclaven  are  listed  in  Art.  6  of  the  Customs 
Union  Treaty  of  1867,  but  most  of  them  have  since  been 
included  in  the  tariff  district.1  The  basis  on  which  any  ter- 
ritory may  be  excluded  from  the  general  tariff  jurisdiction  of 
the  Empire  is,  as  the  wording  of  Art  33,  Cl.  2,  indicates  clearly, 
the  question  of  expediency  pure  and  simple.  It  is  a  matter 
of  administrative  technique.  The  decision  of  the  question 
of  exclusion,  as  well  as  of  the  withdrawal  of  such  exclusion, 
rests,  therefore,  with  the  Bundesrat.  No  act  of  formal  legis- 
lation is  necessary.  As  Laband  well  says,  not  only  the  unity 
of  Germany  as  a  tariff  district  is  recognized  by  the  Constitu- 
tion, but  the  permissibility  of  Exclaven  is  also  recognized,  and 
the  rule  laid  down,  that  such  exclusion  is  "on  account  of 
their  situation."  The  actual  exclusion  of  a  certain  territory, 
therefore,  involves  simply  the  application  of  this  rule  to  a 

concerned  and  the  indirect  taxes  as  well,  as  if  it  belonged  to  Bavaria.  Ac- 
cording to  Laband,  IV.  p.  394,  note  i,  the  treaty  with  respect  to  Mittelberg 
was  concluded  with  the  Empire  rather  than  with  Bavaria,  because  Art.  2 
of  the  Customs  Union  Treaty  of  1867,  dealing  with  the  matter  of  annexed 
territory,  refers  only  to  territory  annexed  at  that  time. 

1  The  list  at  present  includes  certain  Communes  in  the  Badish  Circles  of 
Konstanz  and  Waldshut,  the  free  harbor  district  in  Hamburg,  certain  houses 
in  Cuxhaven  with  the  seafaring  folk,  a  small  district  in  Bremerhaven  with 
the  seafaring  folk,  the  harbor,  constructions  at  Geestemunde,  with  the  sea- 
faring folk  of  the  same,  and  the  adjoining  storage  places  for  petroleum, 
and  the  island  of  Heligoland.  See  Aufsess-Weisinger,  op.  cit.  p.  68;  also 
Triepel,  p.  28,  note  2. 


THE  CONSTITUTION   AND   IMPERIAL   FINANCE          2/1 

particular  case.  In  other  words,  it  involves  the  carrying 
out  of  the  law,  not  an  amendment  of  it.1 

The  second  class  of  Exclaven  recognized  by  the  Constitu- 
tion is  indicated  by  Art.  34,  which  reads:  "The  Hanse 
Cities  of  Bremen  and  Hamburg,  together  with  such  portion  of 
their  district  or  surrounding  territory  as  may  be  suitable  for 
such  purpose,  may  remain  as  free  havens,  outside  the 
common  tariff  boundaries,  until  such  time  as  they  may 
request  incorporation  into  the  same."  2  This  second  class  of 
Exclaven  stands  on  a  different  footing  from  that  of  the  first 
class  in  a  very  important  respect.  It  has  just  been  pointed 
out  that  the  decision  with  reference  to  the  exclusion  of  places, 
whose  location  may  render  the  administration  of  the  tariff 
and  certain  taxes  too  costly  or  too  inconvenient,  rests  with  the 
Bundesrat,  which  may  include  or  exclude  those  districts 
according  to  its  own  discretion.  Whatever  action  the  Bund- 
esrat may  take  in  the  matter  infringes  no  constitutional 
right  of  the  State  whose  territory  is  affected,  and  raises  no 
right  of  resistance  on  the  part  of  that  State.  Not  so  with 
Bremen  and  Hamburg.  By  the  express  terms  of  the  Con- 
stitution, they  are  made  free  havens,  whose  status  in  this 
regard  cannot  be  changed  except  on  their  own  motion.  Inclu- 
sion within  the  boundaries  of  the  general  tariff  jurisdiction, 
therefore,  cannot  be  brought  about  without  their  consent. 
That  consent  being  given,  the  assumption  of  these  cities  into 
the  tariff  district  of  the  Empire  would  carry  with  it  an  amend- 
ment of  Art.  34  of  the  Constitution  no  more  than  an  action 
with  reference  to  the  Exclaven  mentioned  in  Art.  33,  Cl.  i, 
involves  an  amendment  of  that  part  of  the  Constitution. 

On  the  basis  of  a  treaty  concluded  between  the  Imperial 

1  Laband,  IV.  p.  394. 

*  Article  34  of  the  Verf.  d.  N.  G.  B.,  includes  Liibeck.  Liibeck,  however, 
has  been  incorporated  in  the  general  tariff  district  since  n  August,  1868. 


2/2  THE  GERMAN  EMPIRE 

Chancellor  and  the  Senate  of  Hamburg,  25  May,  i88i/ 
and  in  pursuance  of  the  law  of  16  February,  i882,2  touching 
the  annexation  of  Hamburg  to  the  tariff  district  of  the  Empire, 
the  Hamburg  Senate  requested  the  reception  of  the  Hamburg 
district,  with  the  exception  of  its  own  harbor,  into  the  tariff 
district  of  the  Empire,  and  the  Bundesrat  granted  its  request. 
The  actual  incorporation  took  place  on  15  October,  1888. 
At  the  same  time,  the  territory,  till  then  outside  the  common 
tariff  boundaries,  on  the  basis  of  a  resolution  of  the  Bundesrat, 
6  November,  1884,  was  annexed  to  the  tariff  district  of  the 
Empire,  with  the  exception  of  the  harbor  constructions  at 
Bremerhaven  and  the  adjoining  storage  place  for  petroleum, 
and  a  free  district  was  established  near  Bremen  on  the  right 
bank  of  the  Weser.3  The  territories  of  Hamburg  and  Bremen, 
still  lying  outside  the  boundaries  of  the  common  tariff  juris- 
diction, fall  within  the  operation  of  Art.  34  of  the  Constitu- 
tion. The  status  of  these  districts  cannot  be  changed  by 
any  unilateral  act  of  the  Bundesrat,  but  only  on  the  express 
request  of  Hamburg  and  Bremen. 

The  streams  of  the  Empire  are  considered  a  part  of  the 
federal  territory,  and  hence  fall  within  the  tariff  boundaries. 
Considerable  discussion  arose  respecting  the  status  of  the 
lower  Elbe,  from  Hamburg  to  the  mouth  of  the  river,  under 
the  Elbe  Navigation  Act  of  1821.*  By  a  resolution  of  8 
December,  1881,  the  Bundesrat  included  the  lower  Elbe, 
together  with  the  islands  therein,  in  the  common  tariff  dis- 

1  This  agreement,  after  its  ratification  by  the  Bundesrat,  was  laid  before 
the  Reichstag  and  appears  in  the  printed  matter  of  that  body :  5  Legislatur- 
periode,  i  Session,  1881-82,  Nr.  4,  Anlageband  zu  den  Sten.  Ber.  pp.  3-6. 

1  RGBl.  p.  39- 

»  See  Law  of  31  March,  1885  (RGBL  p.  79). 

4  See  Pr.G.S.  for  1822,  Nr.  2;  also  Martens,  Nov.  Rec.  Bd.  5,  pp.  714  ff. 
On  the  discussion,  see  Laband,  IV.  p.  397,  and  the  literature  there  cited 
in  note  5. 


THE  CONSTITUTION  AND   IMPERIAL  FINANCE         273 

trict,1  with  a  provision  freeing  the  ships  to  and  from  Hamburg 
from  any  action  on  the  part  of  the  customs  officials.  The 
lower  Weser  was  also  added  to  the  common  tariff  territory 
at  the  same  time  the  Bremen  territory  was  absorbed.2 

The  second  clause  of  Art.  33  of  the  Imperial  Constitution 
reads  as  follows :  "All  articles,  traffic  in  which  is  free  in  any 
one  of  the  several  States,  may  be  imported  into  every  other 
State,  and  in  the  latter  shall  be  subjected  to  dues  only  so  far  as 
similar  domestic  products  are  subjected  to  an  internal  tax 
there."  Here  the  principle  that  Germany  shall  form  a  single 
tariff  district  finds  its  practical  significance.  Several  points, 
however,  must  be  noted.  In  the  first  place,  the  power  of  the 
several  States  to  lay  and  collect  taxes  on  articles  of  consump- 
tion is  not  unconditionally  taken  away  from  them,  but  it  is 
subjected  to  a  number  of  limitations.  No  further  tax  may  be 
laid  by  the  States  upon  articles  imported  from  a  foreign  land, 
on  which  the  Empire  imposes  a  duty  of  more  than  three  marks 
per  kilo.  Where,  however,  articles  are  imported  upon  which 
further  work  is  done  in  Germany,  or  where  liquors  are  im- 
ported, a  tax  by  the  States  on  the  improvement  of  the  one  or  on 
the  circulation  of  the  other  is  not  prohibited,  provided  such 
tax  is  a  general  one  and  makes  no  distinction  in  its  applica- 
tion between  articles  as  to  whether  they  are  of  foreign  or  of 
domestic  origin.3  With  respect  to  foreign  importations  which 
do  not  pay  more  than  three  marks  duty  per  kilo,  and  with 
respect  also  to  domestic  products,  the  States  may  tax  the 

1  Centralbl.  d.  D.  R.  p.  464.  J  Ibid.  1888,  p.  915. 

8  Treaty  of  8  July,  1867,  Art.  5,  p.  i.  This  article  is  modified  by  §  i  of  the 
Law  of  27  May,  1885  (RGBl.  p.  109),  which  provides  that  the  prohibition  of  a 
further  tax  on  foreign  products  already  taxed  to  the  extent  of  three  marks  by 
the  Empire  "  shall  not  apply  to  flour,  and  other  mill  products,  bakers'  wares, 
meat,  meat  provisions,  and  fats,  and  further  shall  not  apply  to  beer  and 
brandies  so  far  as  taxation  for  the  account  of  the  Commune  and  Corporation 
is  concerned." 


2/4  THE  GERMAN   EMPIRE 

production,  preparation,  or  consumption  of  such  articles  at 
their  own  discretion.  In  other  words,  they  may  levy  new 
taxes,  amend  or  repeal  taxes  already  laid,  or  retain  the  taxes 
in  existence  at  the  time  the  Customs  Union  of  1867  was 
created,  but  "for  the  present,1  —  fur  jetzt,"  —  such  taxes  may 
be  levied  only  on  the  following  domestic  products,  i.e.  prod- 
ucts of  the  particular  State  and  products  of  the  common  tariff 
district :  brandy,  beer,  vinegar,  malt,  wine,  must,  cider,  flour, 
and  other  mill  products,  bakers'  wares,  meat,  meat  provisions, 
and  fats.2  Further,  the  limitation  upon  the  States  extends 
also  to  the  lesser  divisions,  i.e.  the  Communes  and  Cor- 
porations. No  State  may  grant  to  a  Commune  or  Corpora- 
tion the  right  to  levy  a  tax  to  meet  its  expenses,  except  on 
articles  designed  for  local  consumption.3  The  articles  upon 
which  such  a  communal  tax  may  be  laid  are  the  following : 
beer,  vinegar,  malt,  cider,  products  liable  to  the  milling  tax 
and  the  slaughter  tax,  as  well  as  combustibles,  provisions, 
and  feed.  A  tax  on  wine  is  permissible  in  those  parts  of  the 
tariff  district  "which  belong  to  the  wine-growing  section 
proper."  *  Finally,  for  whatever  purpose  the  tax  is  levied, 

1  That  is,  until  modified  by  competent  legislation. 

*  Cust.  Un.  Tr.  Art.  5,  II.  §  2.  Compare  the  reserved  rights  of 
Bavaria,  Wiirttemberg,  and  Baden  with  reference  to  the  taxation  of  beers. 
RVerf.  Art.  35,  Cl.  2. 

3  It  is  not  necessary,  says  Laband,  IV.  p.  400,  note  5,  that  the  articles  be 
actually  consumed  in  the  Commune.     They  need  only  be  intended  (bestimmf) 
for  local  consumption.     When,  therefore,  a  Commune  taxes  beer  within  its 
district,  it  is  not  under  obligation  to  refund  the  tax  in  case  the  beer  is  exported. 
Its  own  interest  would  prompt  a  Commune  to  deal  with  its  own  products  no 
less  favorably  than  with  foreign  products.     But  nothing  in  the  Customs 
Union  Treaty  stands  in  the  way  of  such  action.     On  the  other  hand,  the 
Communes  cannot  burden  foreign   products  more  heavily  than  domestic 
products,  or  grant  to  the  domestic  product  an  export  premium  exceeding  the 
communal  tax. 

4  See  Cust.  Un.  Tr.  Art.  5,  II.  §  7.     Compare  Law  of  25  June,  1873 
(RGBl.  p.  161),  §  5,  which  provides  that  the  limitations  of  Art.  5  of  the  Treaty 
of  1887  shall  not  apply  to  Alsace-Lorraine  and  the  system  of  octroi  there  in 
vogue. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         2/5 

whether  for  the  expenses  of  the  State  or  of  the  Commune,  the 
products  of  another  State  can,  under  no  pretence,  be  taxed 
more  highly  than  the  products  of  the  State  into  which  they 
are  brought,  or  than  the  products  of  the  rest  of  the  States.1 

Certain  modifications  of  the  principle  of  free  commerce 
within  the  territory  of  the  Empire  grow  out  of  the  right  con- 
ceded to  the  States  to  lay  a  consumption  tax.  The  Customs 
Union  Treaty  of  1867,  Art.  5,  II.  §  3,  d,  provides  that 
"those  States  which  have  levied  internal  taxes  on  the  pro- 
duction or  preparation  of  an  article  of  consumption  may 
collect  the  legal  amount  of  the  same  in  full  on  the  importa- 
tion of  the  article  from  other  States  of  the  Union."  2  The 
Treaty  further  provides  that  in  the  States  of  the  Bund  no 
transit  tax  shall  be  collected  on  wine  and  grape-must  produced 
in  the  other  States  of  the  Union.3  Further,  the  Treaty 4  pro- 
vides that  those  States  which  have  levied  a  tax  upon  the 
purchase  and  sale,  the  consumption,  production,  or  prepara- 
tion of  an  article  of  consumption,  may,  on  the  exportation  of 
the  article  to  another  State  of  the  Union,  leave  the  tax  uncol- 
lected,  or  may  refund  the  lawful  amount  of  the  same  in  whole 
or  in  part.  But  the  refunding  shall  take  place  only  so  far  as  a 
compensation  for  taxes  is  guaranteed  on  the  exportation  of 
said  article  to  a  foreign  land,  and  only,  as  a  maximum,  to  the 
amount  of  such  compensation.  The  authorities  also  shall 
especially  see  to  it  that  in  no  case  more  than  the  amount  of  the 

1  See  Cust.  Un.  Tr.  Art.  5,  II.  §§  3  and  7.  The  same  principle  holds 
with  respect  to  goods  imported  from  a  foreign  land,  so  far  as  the  States  may 
tax  at  all.  Cust.  Un.  Tr.  Art.  5,  I.  Cl.  i. 

2 This  is  the  so-called  "transit  tax,"  which  is  to  be  distinguished  from  the 
"  equalization  tax  "  in  that  the  former  is  collected  in  full,  while  the  latter  is 
collected  only  to  the  amount  of  the  difference  in  favor  of  the  importing  State 
between  its  taxes  and  that  of  the  exporting  State.  See  Von  Mayr,  in  Stengel's 
Worterb.  II.  pp.  630-634,  as  to  the  "  Uebergangsabgaben." 

5  Cust.  Un.  Tr.  Art.  5,  II.  §  3,  e.  Also  §  7,  with  reference  to  the  com- 
munal taxes.  *  Ibid.  §  4. 


2/6  THE  GERMAN  EMPIRE 

tax  actually  paid  in  shall  be  returned,  and  this  compensation 
shall  not  have  the  nature  or  effect  of  an  export  premium.1 
Moreover,  the  release  from  obligation  to  pay  the  tax  shall  not 
be  effective,  nor  shall  the  refunding  of  the  tax  take  place, 
before  the  entrance  of  the  taxed  product  into  the  bordering 
State  of  the  Union,  or  into  the  land  of  its  destination,  shall 
have  been  proven  in  such  way  as  may  be  agreed  upon  by  the 
States  concerned.  A  schedule  of  transit  taxes  and  compensa- 
tions is  specially  fixed,  in  accord  with  §§  3  and  4  of  the 
Treaty,  by  the  proper  authorities  in  each  State.  Any  change 
whatever  in  the  rate  of  taxation  on  domestic  products  must  be 
brought  to  the  notice  of  the  Bundesrat,  and  proof  submitted 
that  the  amount  of  the  tax  which  shall  be  levied  as  a  result 
of  the  effected  or  intended  amendment,  upon  the  products  of 
the  States  of  the  Union,  and  the  amount  of  rebate  upon  the 
exportation  of  the  taxed  articles,  correspond  to  the  principles 
laid  down.2  No  State  may,  in  any  circumstances  or  under  any 
conditions,  levy  a  tax  on  the  transportation  of  goods  through 
its  territory.3  Finally,  the  several  States  have  not  the  power 
to  prohibit  the  importation  of  goods  into  their  territory,  nor 
to  hamper  it  with  burdensome  conditions.  Nor  may  they 
forbid  exportation,  since  such  action  would  conflict  with 

1  By  the  last  clause  of  Cust.  Un.  Tr.  Art.  5,  II.  §  7,  similar  regular  regula- 
tions are  laid  down  for  the  Communes  and  Corporations. 

2  Cust.  Un.  Tr.  Art.  5,  II.  §  5.     For  legislation  on  the  subject  see  Proc- 
lamation of  15  January,  1877  (RGBl.  p.  9);  Proclamation  of  29  December, 
1883  (RGBl.  1884,  p.  3) ;  Proclamation  of  29  May,  1890  (RGBl.  p.  69) ;  Proc- 
lamation of  9  July,  1897  (RGBl.  p.  597).    Should  a  difference  of  opinion  arise 
as  to  whether  a  rate  is  properly  in  harmony  with  the  provisions  of  the  Treaty, 
the  decision  is  rendered  by  the  Bundesrat  on  the  ground  of  Art.  7  of  the  Im- 
perial Constitution.     Laband,  IV.  p.  402,  citing  Delbriick,  op.  cit.  pp.  36,  37. 
At  present  transit  taxes  are  levied  only  on  beer  and  crushed  malt ;  in  Saxony 
and  Baden,  on  meat. 

'  Cust.  Un.  Tr.  Art.  3,  §  i,  Cl.  2;  Art.  5,  II.  §  i.  The  Tariff  Law  of 
i  July,  1869  (RGBl.  p.  317),  §  6,  says:  "Von  der  Durchfuhr  werden 
Abgaben  nicht  erhoben." 


THE   CONSTITUTION  AND   IMPERIAL  FINANCE 

Art.  33,  Cl.  i,  and  Art.  35,  of  the  Imperial  Constitution.1  The 
State  may,  however,  impose  limitations  upon  traffic  in  cer- 
tain conditions,  wl:  ere  sanitary  precautions  justify  it,  as,  for 
instance,  an  ordinance  on  the  part  of  the  proper  authorities 
against  the  introduction  of  diseased  cattle  or  of  infected  cloth- 
ing or  wares.2 

(2)  Article  35  of  the  Imperial  Constitution  reads:  "The 
Empire  shall  have  the  exclusive  power  to  legislate  with  respect 
to  all  matters  concerning  the  tariff ;  the  taxation  of  salt  and 
tobacco  produced  in  the  territory  of  the  Union ;  the  taxation 
of  prepared  brandies  and  beers  as  well  as  of  sugar  and  syrup 
made  from  beets  or  from  other  domestic  products.  It  shall 
have  exclusive  power  to  legislate  with  respect  to  the  mutual 
protection  of  the  consumption  taxes  levied  in  the  several 
States  against  fraud,  as  well  as  with  respect  to  the  measures 
required  in  the  Exclaven,  for  the  security  of  the  common 
customs  boundaries."  By  thus  centralizing  the  exclusive 
power  of  imposing  customs  duties  and  of  taxing  the  five 
great  articles  of  consumption,  the  unity  of  legislation  with 
reference  to  these  matters  is  fully  assured. 

In  legislating  upon  these  topics,  the  competence  of  the 
Empire  is  unlimited.  It  covers  the  whole  subject  of  the 
customs,  fixes  the  rate,  specifies  the  articles  to  be  subjected 
to  duty,  provides  for  the  collection  of  the  customs  dues  and 
the  supervision  of  that  collection,  establishes  police  regulations 
concerning  warehouses,  as  well  as  the  import,  export,  and 
transport  of  goods,  organizes  the  necessary  boards  of  officials 
and  defines  their  powers,  punishes  frauds  and  determines  the 
procedure  in  the  trial  of  persons  accused  of  such  defraudation, 
and  enacts  any  and  all  measures  required  to  accomplish  the 

1  See  Laband,  IV.  p.  402. 

2  Ibid.  pp.  402,  403;  Law  of  7  April,    1869   (RGBl.   p.   105);  Law  of 
i  May,  1894  (RGBl.  p.  410)  ;  Customs  Un.  Tr.  Art.  4,  Cl.  5. 


2/8  THE  GERMAN  EMPIRE 

ends  for  which  the  customs  duties  are  imposed.  It  need 
scarcely  be  added  that  in  none  of  these  matters  are  the  several 
States  competent  to  legislate,  nor  may  they  conclude  treaties 
affecting  these  subjects  with  foreign  States.  A  discussion  of 
the  laws  touching  the  customs  or  the  taxes  laid  upon  articles 
of  consumption  would  hardly  fall  within  the  scope  of  this 
present  work.1 

Like  so  many  of  the  provisions  of  the  Imperial  Constitu- 
tion, Art.  35  suffers  exception.  Clause  2  of  the  article  reads  : 
"In  Bavaria,  Wiirttemberg,  and  Baden,  the  taxation  of  do- 
mestic beer  and  brandy  is  reserved  for  the  legislation  of  each 
State.  These  States,  however,  shall  direct  their  efforts  toward 
bringing  about  uniform  legislation  respecting  the  taxation 
of  these  articles."  Under  this  provision  of  the  Constitu- 
tion, therefore,  these  three  States  were  not  included  in  the 
general  scope  of  the  imperial  taxation  upon  brandies  and 
beers.  They  paid  an  aversum,  or  lump  sum,  into  the  imperial 
treasury,  a  sum  based  upon  the  proportion  which  their 
population  bore  to  the  whole  population  of  the  Empire,  and 
the  revenue  from  the  taxation  upon  brandies  and  beer  flowed 
into  the  treasury  of  each  State.  As  the  clause  stood,  the 
competence  of  the  Empire  to  legislate  with  reference  to  the 
taxation  of  these  two  commodities  was,  therefore,  excluded 
from  these  three  States.  So  far  as  beer  is  concerned,  this 
exclusion  still  holds.2  A  radical  change  has  been  effected, 
so  far  as  respects  the  taxation  of  brandy,  by  the  Law  of 

1  A  good  summary  of  the  imperial  tax  laws  is  found  in  Von  Ronne,  Ver- 
fassung  des  D.  R.,  9  Aufl.,  Berlin,  1904,  pp.  200  ff.  There  is  as  yet  no  im- 
perial salt  tax.  The  collection  of  the  salt  tax  rests  upon  an  agreement  made 
by  the  States  of  the  Customs  Union,  8  May,  1867,  and  upon  identical  laws 
of  the  several  States  based  upon  it.  For  a  good  sketch  of  tariff  legislation 
down  to  1901,  see  Wagner,  op.  cit.  pp.  667  ff. 

1  See  Aufsess,  op.  cit.  pp.  295  ff . ;  Wagner,  op.  cit.  pp.  686  ff . ;  Appelt, 
Die  Brausteuer-Gesetzgebung,  2  Aufl.,  Halle,  1885. 


THE  CONSTITUTION   AND   IMPERIAL   FINANCE          2/9 

24  June,  1887, 1  or,  more  accurately,  by  the  action  of  these 
three  States  making  this  law  operative  within  their  own  ter- 
ritories. As  a  resuit  of  such  action,  the  three  South  German 
States  have  been  brought  within  the  general  tax  jurisdiction 
of  the  Empire,  so  far  as  the  taxation  of  brandy  is  concerned, 
and  the  aversum  hitherto  paid  into  the  imperial  treasury  has 
been  abolished.  These  States  now  share  in  the  proceeds  of 
the  general  tax  on  brandy,  according  to  their  proportionate 
population.  Their  "special  right"  with  reference  to  the 
brandy  tax,  granted  under  Cl.  2  of  Art.  35,  no  longer  stands. 
The  situation  maybe  thus  summed  up  in  the  words  of  Laband : 
"By  the  consent  of  the  South  German  States  to  the  introduc- 
tion of  the  Law  of  24  June,  1887,  the  principle  of  Art.  3 5  — 
that  the  Empire  has  the  exclusive  legislative  power  with  re- 
spect to  the  taxation  of  brandies  made  within  the  imperial 
territory  —  became  operative  also  for  them.  So  far  as  the 
imperial  law  itself  contains  no  delegation  of  power  to  the 
individual  States,  they  have  no  authority  to  issue  any  legal 
regulation  whatever  with  reference  to  the  taxation  of  brandies, 
either  in  the  way  of  State  law  or  in  the  form  of  ordinance. 
Moreover,  the  power  of  the  Bundesrat  to  issue  general  ad- 
ministrative ordinances  necessary  for  the  execution  of  the 
brandy  tax  law,  and  to  take  action  with  respect  to  defects 
which  make  themselves  apparent  in  the  execution  of  the  law, 
or  of  its  own  ordinances,  extends  to  the  South  German  States. 
The  supervision  of  the  execution  of  the  law  even  in  the 
South  German  States  belongs  to  the  Kaiser.  The  amend- 
ment of  the  Law  of  24  June,  1887,  can  take  place  according 


1  RGBl.  p.  253.  Note  amendments  of  this  law,  7  April,  1889  (RGBl. 
p.  149);  8  June,  1891  (RGBl.  p.  338);  16  June,  1895  (RGBl.  p.  265).  Text 
of  revised  law  is  found  in  Proclamation  of  Imperial  Chancellor,  17  June, 
1895  (RGBl.  pp.  276  ff.).  See  also  Proclamation  of  the  Imperial  Chancellor, 
28  July,  1898  (RGBl.  p.  1018),  and  Law  of  7  July,  1902  (RGBL  p.  243). 


28O  THE  GERMAN   EMPIRE 

to  the  rules  governing  imperial  legislation,  without  any  right 
on  the  part  of  the  South  German  States,  individually  or  collec- 
tively, to  object  thereto.  This  is  especially  true  of  the  fix- 
ing of  the  rate  of  taxation."  l 

(3)  Article  35,  Cl.  i,  as  already  seen,  gives  to  the  Empire  the 
exclusive  competence  in  tariff  and  tax  legislation.  Article  7, 
Cl.  2,  empowers  the  Bundesrat  to  pass  ordinances  essential 
to  the  execution  of  these  laws.  Notwithstanding  this,  the 
Empire  has  no  authority  to  collect  the  taxes  which  it  levies. 
"The  collection  and  administration  of  customs  duties  and  of 
taxes  on  articles  of  consumption  (Art.  35)  within  its  own  ter- 
ritory, are  left  to  each  several  State,  so  far  as  this  has  been 
its  practice  heretofore."  2  In  other  words,  the  Empire  has 
the  right  to  regulate  and  supervise  the  administration  of  the 
customs  and  the  taxes  on  articles  of  consumption,  but  the 
work  is  actually  carried  on  by  the  individual  States.  The 
phrase,  "so  far  as  this  has  been  its  practice  heretofore,"  does 
not  imply  a  reservation  of  competence  on  the  part  of  the  Em- 
pire. It  merely  continues  in  force  those  limitations  upon 
the  several  States  which  are  based  upon  the  Customs  Union 
Treaties  and  the  separate  agreements  concluded  between 
the  members  of  the  Union.3 

The  authority  granted  to  the  several  States  by  Art.  36, 
Cl.  i,  extends  to  the  organization  of  the  boards  by  which 
the  customs  and  taxes  are  to  be  collected,  as  well  as  to  the 
control  of  those  boards.  This  authority,  however,  is  exer- 

1  Laband,  IV.  p.  417.  *  RVerf.  Art.  36,  Cl.  i. 

8  Laband,  IV.  p.  423 ;  Hanel,  I.  pp.  405  ff. ;  Meyer,  Verwaltungsr.  II.  p.  328. 
The  Thiiringian  States,  including  the  Thiiringian  part  of  Prussia,  form 
the  so-called  Thiiringian  Customs  and  Tax  Union,  based  on  the  Treaties 
of  10  May,  1833,  26  November,  1852,  3  April,  1853,  27  June,  1864,  20 
November,  1889.  Here  the  administration  is  common.  The  admin- 
istration of  Lippe,  Schaumburg-Lippe,  and  Waldeck,  as  well  as  of 
certain  places  in  Mecklenburg,  Oldenburg,  Lubeck,  and  Hamburg,  has 
been  assumed  by  Prussia. 


THE  CONSTITUTION  AND   IMPERIAL  FINANCE         28 1 

cised  under  the  regulations  and  limitations  of  imperial 
legislation.1 

There  is  no  Imperial  Board  of  Customs  and  Tax  Admin- 
istration. The  customs  and  tax  officials  receive  their  instruc- 
tions from  and  report  to  the  highest  State  authorities  in  tariff 
and  tax  matters.  These  State  authorities  stand  wholly  out- 
side the  imperial  official  system.  They  do  not  receive  their 
salaries  from  the  imperial  treasury.  They  do  not  take  the 
oath  of  loyalty  to  the  Kaiser  or  to  the  Empire  on  assuming 
their  duties,  nor  do  they  come  under  the  operation  of  the  laws 
affecting  imperial  officials. 

The  supervision  exercised  by  the  Empire  in  accordance 
with  the  provisions  of  the  Imperial  Constitution  is  carried  on 
by  officials  appointed  by  the  Kaiser,  with  the  consent  of  the 
Committee  on  Tariff  Matters  in  the  Bundesrat.  These 
officials  occupy  a  peculiar  position  with  reference  to  the  tax 
and  customs  officials  of  the  States,  and  are  of  two  classes: 
the  " Stations-Kontroleure"  or  "  Kontroleure"  as  they  are  more 
briefly  called  —  officials  associated  with  the  customs  and  tax 
officers  of  the  State,  and  the  "  Reichsbevollmachtigte  fur  Zolle 
und  Steucr"  or  "Imperial  Customs  and  Tax  Deputies," 
officials  associated  with  those  boards  of  the  State  having  the 
direction  of  matters  of  customs  and  taxation.  Laband  styles 
these  officials  "Officials  extraordinary  for  the  administration 
of  the  customs  and  taxes."  In  the  performance  of  their  func- 
tions, the  first  class  are  subordinate  to  and  receive  their  in- 
structions from  the  second.  These  imperial  "officials  ex- 
traordinary" have  no  legislative  or  judicial  powers  and  no 
vital  connection  with  the  officials  of  the  States.2  Their  work 
is  peculiarly  that  of  supervision  and  inspection.  To  this 

1  See  Cust.  Un.  Tr.  of  8  July,  1867,  Art.  3,  §  6;   Art.  16,  §  4;  Art.  19. 
Also  Law  of  i  July,  1869  (RGBl.  p.  317),  §§  128-133. 
1  See  Cust.  Un.  Tr.  Art.  20,  Cl.  3. 


282  THE  GERMAN  EMPIRE 

end,  they  have  the  right  of  attending  meetings  of  the  direct- 
ive boards  of  the  State,  to  inspect  all  books,  to  audit  ac- 
counts, and  to  assure  themselves  that  the  service  rendered  by 
the  officers  at  the  frontier  is  both  efficient  and  sufficient. 
Further,  all  decrees  and  instructions  respecting  the  adminis- 
tration of  the  common  taxes,  sent  to  their  subordinates  by 
the  directive  Boards  of  the  State,  receive  the  vise  of  the  im- 
perial deputy,  if  he  be  in  the  place,  before  such  orders  are 
promulgated.1  By  such  means  as  this  the  Empire  is  kept 
fully  informed  of  the  administration  of  the  customs  and 
taxes  in  the  several  States  of  the  Empire. 

Should  a  difference  of  opinion  arise  over  some  adminis- 
trative question  between  the  imperial  deputy  and  the  State 
officials,  the  deputy  has  no  right  to  force  his  views  upon  the 
State  authorities  or  to  interfere  with  them  in  the  exercise  of 
their  duties.  Any  such  conflict  must  be  carried  before  the 
highest  administrative  authority  of  the  State  for  its  decision. 
As  a  matter  of  general  principle,  the  Empire  cannot  interfere 
in  any  judicial  process,  so  long  as  the  means  of  prosecuting 
the  case  by  appeal  to  the  State  courts  has  not  yet  been  ex- 
hausted. When,  however,  a  decision  is  finally  had  in  the  State 
tribunals,  and  such  decision  is,  in  the  opinion  of  the  imperial 
deputy,  contrary  to  the  law  or  to  the  interests  of  the  Empire, 
or  when  the  remedy,  in  case  a  defect  has  been  discovered  by 
the  deputy,  is  not  forthcoming  in  due  time,  or  when  there  is  a 
disagreement  between  the  several  high  authorities  of  the  State, 
the  deputy  may  bring  the  matter  before  the  Bundesrat.2 

1  The  deputy  is  not  invested  with  any  power  of  veto.  He  may  not  with- 
hold his  vise.  It  is  for  the  most  part  a  mere  attest  of  the  fact  that  he  has  in- 
spected the  document  in  question.  Nor  may  he  issue  orders  to  the  customs 
and  tax  officers  with  respect  to  the  curing  of  defects  detected  in  the  adminis- 
tration of  the  laws.  He  may  simply  bring  these  matters  to  the  attention  of 
the  directive  board  of  the  State  and  request  that  they  be  remedied.  Cust. 
Un.  Tr.  Art.  20,  Cl.  4. 

1  Laband,  IV.  p.  428;  RVerf.  Art.  36,  Cl.  3. 


THE  CONSTITUTION  AND   IMPERIAL  FINANCE         283 

In  matters  of  criminal  action  touching  the  customs  and  the 
taxes,  each  several  State  has  the  right  of  pardon  and  of  com- 
mutation of  sentence  within  its  own  territory.1  All  fines  and 
confiscations  belong  to  that  State  whose  court  has  rendered 
judgment  in  the  first  instance.2  The  three  Southern  States 
and  Alsace-Lorraine  are  not  subjected  to  this  system  of  inspec- 
tion and  supervision  just  discussed,  so  far  as  the  administra- 
tion of  the  tax  on  beer  is  concerned. 

(4)  Something  should  be  said  at  this  point  with  reference 
to  the  principles  controlling  the  imposition  of  customs  duties 
in  German  law.  In  the  German  Empire,  customs  duties 
are  laid  only  upon  articles  imported.  The  exportation  and 
transportation  of  goods  are  not  taxed.3  So  far  as  their  lia- 
bility to  duty  is  concerned,  it  is  immaterial  whether  the  articles 
are  of  foreign  or  domestic  origin*  nor  does  it  matter  whether 
they  have  already  been  subjected  to  duty  or  tax.  The  duty 
must  be  collected  as  often  as  the  goods  cross  the  customs  fron- 
tier from  a  foreign  land.5  The  liability  to  duty  arises  the 

1  Cust.  Un.  Tr.  Art.  18. 

2  According  to  the  provisions  of  the  Cust.  Un.  Tr.  Art.  18,  and  of  a  deter- 
mination of  the  Bundesrat,  26  June,  1880,  the  directive  boards  of  the  several 
States  must  furnish  the  Board  of  Statistics,  each  fiscal  year,  information  as 
to  the  confiscation  of  goods  because  of  revenue  frauds,  and  the  report  is  to 
be  published. 

3  Vereinszollgesetz  of  T  July,  1869  (BGBl.  p.  317),  §§  3-6.      In  conformity 
to  Art.  7,  Cl.  2,  of  the  Cust.  Un.  Tr.,  this  law  was  published  in  the  South 
German  States  as  State  law,  and   was  introduced  into  Alsace-Lorraine  by 
the  Law  of  17  July,  1871  (GBl.  /.  E.-L.  p.  37).     On  the  general  subject  of 
the  liability  of  articles  to  duty,  see  Von  Mayr,  in  Stengel's  Worterb.  II. 
pp.  945  ff. ;   Meyer,  Ver-waltungsr.  II.  pp.  331  ff. ;   Laband,  IV.  pp.  430  ff. 

*  VZG.  §  4. 

5  To  this  rule  there  are  certain  exceptions  under  the  VZG. :  (a)  goods 
which,  in  being  shipped  from  one  part  of  the  Empire  to  another,  pass  through 
a  foreign  land,  are  exempted  on  proof  of  their  identity  (VZG.  §  in);  (b) 
goods  sent  abroad  to  fairs  or  public  expositions,  goods  shipped  for  sale  upon 
commission,  for  inspection,  or  for  temporary  use,  and  are  returned,  are  ex- 
empted upon  proof  of  their  identity  (VZG.  §§  112-114);  (c)  goods  shipped 


284  THE  GERMAN  EMPIRE 

moment  the  goods  have  passed  the  boundary  line.  Where, 
however,  goods  are  passing  through  the  territory,  and  from  the 
time  of  their  entry  up  to  the  time  of  their  exit  are  in  the  con- 
trol of  the  revenue  officials,  the  liability  to  duty  is  not  created. 
Moreover,  goods  brought  across  the  line  and  stored  in  ware- 
houses under  the  supervision  and  control  of  the  revenue  offi- 
cials, while  dutiable,  are  not  called  upon  to  pay  the  customs 
dues  until  their  release  for  circulation.1  The  general  pre- 
sumption is  that  all  goods  coming  from  a  foreign  land  are  free 
of  duty.2  Only  those  wares  are  subject  to  customs  dues  which 
are  included  in  the  classification  of  the  tariff  law.  That  is  to 
say,  all  goods  may  enter  the  country  free  of  duty,  unless  the 
law  specifically  declares  to  the  contrary. 

As  to  the  nature  of  the  liability  to  customs  duties,  from  a 
juristic  standpoint,  Laband  says  that  "the  obligation  to  pay 
duty  is,  so  far  as  its  juristic  nature  is  concerned,  no  obliga- 

to  a  foreign  land  may,  in  special  cases,  be  freed  from  duty  upon  their  return 
in  improved  condition  (•uervottkommendem  Zustande)  (VZG.  §  105,  Cl.  2); 
(<f)  The  Bundesrat  may,  by  enactment,  decide  whether  and  under  what 
conditions  an  exemption  may  be  granted  in  other  cases,  on  grounds  of  fair- 
ness or  equity,  to  goods  returned  from  a  foreign  land,  or  to  goods  imported 
from  a  foreign  land  and  afterwards  exported  (VZG.  §  118,  Cl.  2); 
(«)  goods  brought  into  the  territory  of  the  Empire  for  purposes  of  repair  or  for 
completion  or  other  improvement,  but  which  are  designed  to  be  again  taken 
out  of  the  country,  in  other  words,  goods  upon  which  certain  German  labor 
is  to  be  expended,  but  which  are  not  intended  for  circulation  in  the  Empire, 
may  be  exempted  from  the  payment  of  customs  duties  (VZG.  §  115, 
Cl.  i). 

1  VZG.  §§  97-100. 

J  See  VZG.  §  3,  which  reads:  "Die  aus  dem  Vereinsauslande  einge- 
henden  Gegenstande  sind  zollfrei,  soweit  nicht  der  Vereinszolltariff  einen 
Eingangszoll  festsetzt."  The  Law  of  15  July,  1879,  and  the  later  wording 
found  in  the  Proclamation  of  the  Imperial  Chancellor  of  24  May,  1885 
(RGBl.  p.  3) ,  both  open  with  the  words  "  Bei  der  Einf uhr  von  Waaren  werden 
Zolle  nach  Massgabe  der  nachstehenden  Zolltariff  erhoben."  Zorn,  Staalsr. 
II.  p.  249,  claims  that  §  3  of  the  VZG.  is  repealed  by  §  i  of  the  later 
laws.  This  view  is  combated  by  Laband,  IV.  p.  432,  note  7,  and  Meyer, 
Verwaltungsr.  II.  p.  332. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         285 

tio  ex  lege,  but  a  charge  upon  the  dutiable  article.  The  State 
does  not  allow  the  goods  to  circulate  unless  the  duty  has  been 
paid.  The  payment  of  the  duty  is  the  condition  under  which 
the  State  permits  commerce  with  the  wares,  and  the  obliga- 
tion arises  only  in  the  sense  that  everyone  who  wishes  to  bring 
goods  into  free  circulation  must  first  of  all  fulfil  the  condition. 
The  liability,  therefore,  does  not  rest,  as  a  species  of  obliga- 
tion, upon  a  certain  debtor,  but  as  a  kind  of  'dingliches 
Recht,'  upon  a  certain  ware."  1  The  goods,  therefore,  are 
held  liable  for  the  duty  laid  upon  them  and  may  be  detained 
or  attached  by  the  Customs  Administration.2  An  attach- 
ment takes  away  every  right  of  disposition  from  the  holder 
of  the  goods,  and  creates  a  lien  in  favor  of  the  Fiscus,  who  may 
eventually  sell  the  wares  and  apply  the  proceeds  to  the  pay- 
ment of  the  same.3  An  attachment  of  this  sort  takes  prece- 
dence of  every  other  claim  against  the  goods,  nor  is  the  lia- 
bility of  the  goods  for  the  payment  of  the  duty  excluded  by 
the  rights  which  third  parties  may  have  in  the  dutiable  ar- 
ticles. The  attached  goods  may  not  be  pursued  in  the  courts, 
nor  by  creditors  or  administrators  in  bankruptcy,  before  the 
duty  has  been  paid  thereon.4 

In  certain  cases  the  imperial  government  may,  by  ordi- 
nance, increase  the  duty  fixed  in  the  tariff  schedule.  Such  an 
increase  may  be  made,  for  instance,  in  the  case  of  goods  from 
States  which  treat  the  ships  or  products  of  Germany  more  un- 
favorably than  the  ships  and  wares  of  other  nations.5  An 

1  Laband,  IV.  433.  2  VZG.  §  14,  also  100. 

3  The  proceeds  satisfy  the  lien,  even  if  insufficient  to  pay  in  full.     Laband, 
IV.  p.  437- 

4  VZG.  §  14. 

*  Law  of  15  July,  1879,  revision  of  24  May,  1885  (RGBl.  p.  in).  This  Law 
of  15  July,  1879,  fixed  the  amount  of  increase  permissible  at  50  per  cent. 
This  was  raised  to  100  per  cent  by  the  later  revision.  See  Law,  §  6. 
Goods  therefore  from  States  discriminating  against  German  ships  or  products 


286  THE  GERMAN  EMPIRE 

ordinance  of  this  sort  has  the  character  of  a  retaliatory  meas- 
ure. It  may  take  the  form  of  an  ordinance  issued  by  the 
Kaiser  with  the  consent  of  the  Bundesrat.  This  ordinance 
must  be  laid  before  the  Reichstag  at  once,  or,  if  that  body  be 
not  in  session  at  the  time,  at  its  next  sitting.  Should  the 
Reichstag  refuse  its  assent,  the  ordinance  immediately  goes 
out  of  force.1 

Complaints  with  respect  to  the  application  of  the  tariff 
laws  in  individual  cases  may  not  be  prosecuted  in  the  courts, 
but  are  decided  by  the  administrative  authorities.2  This  rule 
holds  with  reference  to  the  interpretation  of  the  tariff  itself, 
i.e.  to  the  determination  of  the  question  whether  a  certain 
article  falls  within  the  scope  of  the  law,  or  to  the  decision  as  to 
rate  of  duty  which  should  be  imposed.  But  questions  as  to 
whether  the  legal  assumptions,  on  which  liability  to  duty  is 
based,  are  present ;  whether,  in  case  of  a  change  of  tariff,  the 
old  or  the  new  law  shall  be  applied ;  whether  a  person  is  sub- 
jected to  a  subsidiary  liability ;  whether  the  statute  of  limita- 
tions applies,  etc.,  may  properly  be  brought  before  the  courts.3 

The  entry  of  certain  articles  into  the  country  is  absolutely 
prohibited.  Such  articles  are  contraband.  The  introduc- 
tion of  contraband  goods  is  not,  strictly  speaking,  an  infrac- 
tion of  the  tariff  laws,  for  these  articles  do  not  come  under  the 

may  be  subjected  to  an  increase  of  duty  up  to  100  per  cent  of  the  regular 
amount  fixed  in  the  schedule,  and  wares  ordinarily  duty  free  may  be  sub- 
jected to  an  ad  valorem  duty  of  20  per  cent.  The  usual  duty  in  Germany, 
even  in  the  case  of  fluids,  is  based  on  weight. 

1  Law  of  24  May,  1885,  §  6.  The  right  to  pass  retaliatory  measures 
arises  when  German  goods  are  treated  less  favorably  than  those  of  any  third 
State.  Meyer,  Verwaltungsr.  II.  p.  332,  note  2. 

J  VZG.  §  12. 

*  Laband,  IV.  p.  439,  citing  decision  of  the  RCer.,  i  July,  1881,  and  21 
May,  1889  (Entsch.  in  Civilsach.  V.  pp.  43  ff.,  and  XVI.  pp.  37  ff.).  The 
permissibility  of  a  judicial  settlement  of  contentions  of  this  sort  is  determined 
by  State  law. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         287 

operation  of  the  schedule,  but  it  is  a  breach  of  the  police  regu- 
lations.1 Contraband  goods  found  in  the  country  are  con- 
fiscated, and  the  person  introducing  them  is  fined,  the  fine 
being  cumulative.  A  tariff  duty,  on  the  other  hand,  is  a  con- 
ditional prohibition  of  the  entry  of  the  goods  into  the  country. 
Fraud  or  evasion  of  the  payment  of  duty  is  properly  an  offence 
against  the  customs  laws.  The  penalty  for  fraud  consists 
in  the  confiscation  of  the  goods,  and  the  payment  of  the  duty 
plus  four  times  the  amount  of  the  same,  which  fine  is  cumula- 
tive in  case  of  repeated  offence.  The  fact  that  the  smuggler 
of  goods  is  not  their  owner  does  not  exempt  such  goods  from 
confiscation.2 

2.  The  Statistical  Fee.  —  In  connection  with  the  ordinary 
customs  duties  may  be  mentioned  a  species  of  dues  known 
as  the  "Statistical  Fee."  In  order  that  statistics  may  be. 
obtained  with  respect  to  the  circulation  of  goods,  —  a  Royal 
Statistical  Office  was  erected  for  this  purpose  in  1872,  —  a 
declaration  of  all  goods  which  cross  the  frontier  is  required, 
whether  such  goods  are  imported,  exported,  or  merely  trans- 
ported across  the  country.  This  declaration  must  be  in  writ- 
ing, special  blanks  being  furnished  for  the  purpose,  and  dues 
are  collected  in  the  form  of  imperial  stamps  which  must  be 
affixed  to  these  declarations.3  The  receipts  from  the  Statis- 

1  Meyer,  Verwaltungsr.  II.  p.  347. 

2  On  contraband  and  fraud  see  VZG.  §§  134-167. 

3  See  Law  of  20  July,  1879  (RGBl.  p.  261).     Strictly  speaking,  this  is  not  a 
"  fee,"  but  virtually  a  petty  import  and  export  duty.     See  Meyer,  Verwalt- 
ungsr. II.,  p.  349 ;   Laband,  IV.  p.  446,  note  5.     In  the  case  of  petty  trade 
between  frontier  villages  not  more    than  15   kilometers  distant  from  the 
tariff  boundaries,  such  a  declaration  may  be  made  orally.     The  tax  is  very 
light,  e.g.  5  pfennigs  per  500  kilos  for  packed  goods,  5  pfennigs  per  1000  kilos 
for  unpacked  goods,  10  pfennigs  per  10,000  kilos  for  certain  goods  shipped 
in  bulk,  such  as  coal,  wood,  potatoes,  grain,  etc.,  and  5  pfennigs  per  head  for 
live  stock.     There  are  certain  exemptions:   (i)    goods  sent  under  control  of 
customs  officials  or  stored  in  warehouses  for  unentered  wares;    goods  dis- 


288  THE  GERMAN  EMPIRE 

tical  Fee  flow  into  the  imperial  treasury.  The  several  States, 
however,  receive  a  compensation  for  the  costs  connected  with 
the  collection  of  the  fees.1  The  amount  of  the  compensation 
is  fixed  by  the  Bundesrat.  For  the  sale  of  the  stamps,  the 
three  postal  administrations  —  the  Empire,  Bavaria,  and 
Wurttemberg  —  receive  a  commission  of  two  and  one-half 
per  cent  of  the  gross  receipts. 

3.  The  Imperial  Stamp  Taxes.  —  The  Empire  derives 
certain  revenues  from  what  are  known  as  the  "Stamp  Taxes." 
These  taxes  are  (i)  the  tax  on  playing-cards,  and  (2)  the  tax 
on  various  instruments  or  documents.  The  imperial  tax  on 
playing-cards  was  laid  by  the  Law  of  3  July,  i878.2  This  tax 
is,  in  character,  an  indirect  tax,  a  consumption  tax,  in  fact. 
It  is  not  collected,  however,  from  those  who  use  the  cards,  but 
from  those  who  manufacture  them  and  from  those  who  ex- 
port them.  The  tax  is  levied  in  the  form  of  a  stamp  affixed 
to  all  packs  of  playing-cards  made  in  Germany  and  upon  all 
cards  imported  for  use  in  the  country.  The  word  "import" 
as  used  in  the  law,  covers  not  only  the  territory  comprised 
within  the  actual  "Tariff  District,"  but  makes  the  customs 

charged  into  free  circulation  through  the  payment  of  customs  duty;  goods 
exported  under  official  control  for  the  purpose  of  compensation  or  release 
from  excises;  (2)  goods  accompanied  by  direct  pass-bills  (Begleitpapiere) 
are  carried  free  through  German  territory  or  out  of  the  same  through  a 
foreign  territory  back  again  into  Germany;  (3)  goods  sent  by  mail. 

1  Law  of  20  July,  1879,  §  n,  Cl.  i,  and  14. 

*  RGBl.  p.  133.  This  is  an  old  form  of  taxation,  familiar  in  Germany  since 
the  beginning  of  the  eighteenth  century,  and  found  in  nearly  all  the  German 
States.  In  some  States  the  traffic  in  playing-cards  takes  the  form  of  a  State 
monopoly.  The  Law  of  3  July,  1878,  was  an  imperial  law,  and  the  tax 
levied  by  the  Empire  naturally  superseded  all  legislation  by  the  States  on 
the  same  subject.  See,  on  the  imperial  tax  on  playing-cards,  Jacob, 
article  "  Spielkartenstempel"  in  Stengel's  Worterb.  II.  pp.  470  ff. ;  and  article 
"  Spielkartensteuer,"  by  Von  Heckel,  in  Conrad's  Handworterb.  2  Aufl., 
VI.  pp.  894  ff .  Also  Laband,  IV.  pp.  447  ff . ;  and  Meyer,  VerwaUungsr. 
II.  pp.  394  ff. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE          289 

frontier,  so  far  as  the  tax  on  playing- cards  is  concerned,  identical 
with  the  boundary  of  the  Empire.  The  tax  is  collected,  there- 
fore, upon  all  playing-cards  brought  into  those  parts  of  the 
Empire  excluded  from  the  Tariff  District,  and  need  not  be 
collected  in  those  parts  of  foreign  territory  which  are  included 
within  that  district.1 

The  stamp  tax  on  various  instruments  or  papers2  may  be 
classified  as  follows :  (a)  the  tax  on  bills  of  exchange,  drafts, 
promissory  notes,  and  other  promises  to  pay  on  demand,  cir- 
culating in  the  Empire;  (b)  the  tax  on  domestic  shares  of 
stock,  and  on  foreign  shares  of  stock  which  are  delivered, 
sold,  or  hypothecated  in  the  Empire,  and  on  mining  stock; 
(c)  the  tax  on  negotiable  domestic  stocks  and  bonds,  as  well 
as  on  foreign  securities  of  the  same  kind,  when  they  are  de- 
livered, sold,  or  hypothecated  in  the  Empire ;  (d)  the  tax  on 
certain  kinds  of  brokerage  transactions,  in  which  certain  forms 
provided  with  a  government  stamp  must  be  used ;  (e)  the  tax 
on  lottery  tickets  and  on  the  statement  of  the  prizes  or  stakes 
in  public  lotteries;  (/)  the  tax  on  bills  of  lading  and  on  the 
way-bills  of  ships  plying  between  domestic  and  foreign  ports, 
so  far  as  these  papers  are  made  out  in  the  Empire  or  are  pre- 
sented there  in  connection  with  the  reception  or  delivery  of  the 
consignment.  All  papers  thus  subjected  to  a  stamp  tax  by 
the  imperial  law  or  exempted  from  such  tax  under  imperial 
law  may  not  be  taxed  by  the  individual  States.  An  excep- 

1  Meyer,  Verwaltungsr.  II.  p.  395. 

J  See  Law  of  14  June,  1900  (RCBl.  p.  275).  This  law  is  a  revision  of  the 
Law  of  10  June,  1869  (RGBl.  p.  193),  with  the  modifications  of  4  June,  1879 
(RGBl.  p.  151),  i  July,  1881  (RCBl.  p.  185),  29  May,  1885  (RGBl.  p.  171,  also  in 
Proclamation  of  3  June,  1885,  RGBl.  p.  179),  and  27  April,  i8^(RGBl.  p.  381). 
See  also  Laband,  IV.  pp.  449  ff. ;  and  Meyer,  Verwaltungsr.  II.  pp.  383  ff. 
This  tax  is  imposed  in  the  form  of  a  stamp  which  must  be  attached  to  the 
various  papers  in  accordance  with  certain  fixed  regulations  laid  down  by 
the  Bundesrat. 


29O  THE  GERMAN  EMPIRE 

tion  is  made  in  the  case  of  papers  relating  to  registration  in 
the  Land-book,  and  of  notarial  or  court  fees  in  acceptances 
and  attestations.  The  general  supervision  over  the  admin- 
istration of  this  tax,  which,  according  to  Art.  17  of  the  Im- 
perial Constitution,  is  delegated  to  the  Kaiser,  is  exercised 
through  the  Imperial  Treasury  Office.1  The  collection  and 
administration  of  the  tax  are  conducted  by  the  individual 
States,  whose  officials  are  bound  to  see  that  the  provisions 
of  th:  law  are  properly  executed. 

III.  Empire  and  State  in  the  Administration  of  Finances.  — 
Article  38  of  the  Imperial  Constitution  provides  that  the  income 
from  the  customs  and  from  the  taxes  on  articles  of  consump- 
tion mentioned  in  Art.  35,  so  far  as  they  are  subject  to  im- 
perial legislation,  shall  flow  into  the  imperial  treasury,  after 
deducting  certain  costs  incident  upon  their  collection  and  ad- 
ministration, as  well  as  certain  repayments  provided  for  by 
law.2  The  administration  of  the  taxes  is  carried  on  by  the 
individual  States  to  the  account  of  the  Empire.  In  other 
words,  the  taxes  are  collected  by  the  States  jor  the  Empire,  and 
the  costs  of  collection  and  administration  are  repaid.3  Article 
38,  3,  a,  also  provides  that  so  far  as  the  tariff  is  concerned 
those  costs  necessarily  incurred  in  the  collection  of  the  duties 
on  the  tariff  frontier  between  the  Empire  and  a  foreign  land, 
and  incurred  also  in  protecting  the  collection  in  the  border 
districts,  shall  be  deducted  from  the  receipts.  This  reim- 

1  The  control  of  the  imperial  stamp  taxes  is  not  placed  in  the  hands  of  the 
Imperial  Tax  deputies.  The  reason,  Laband  suggests,  is  found  in  the  fact 
that  the  collection  of  these  dues  in  many  States,  notably  Bavaria,  is  adminis- 
tered by  finance  boards,  whose  control  by  imperial  officials  is  not  desired. 
Laband,  IV.  p.  460,  note  2. 

7  With  reference  to  these  repayments,  see  Cust.  Un.  Tr.  Art.  13-15. 

3  All  losses  occurring  through  the  unfaithfulness  or  other  fault  of  the 
State  officials  must  be  borne  by  the  State,  not  by  the  Empire.  See  Cust. 
Un.  Tr.  Art.  16,  Cl.  2.  In  other  words,  the  States  are  liable  for  the  amount 
of  the  taxes,  to  be  delivered  over  or  accounted  for. 


THE   CONSTITUTION   AND   IMPERIAL   FINANCE         29 1 

bursement  was  formerly  made  in  the  form  of  a  lump  sum, 
the  amount  due  each  State  being  fixed  by  the  Bundesrat. 
In  1882,  this  system  having  proven  unsatisfactory,  it  was  re- 
placed by  a  "  Zollverwaltungsetat,"  or  "  Estimate  for  the  Cus- 
toms Administration,"  fixed  by  the  Bundesrat.1  This  estimate 
is  made  every  year  by  the  Bundesrat  Committee  on  the  Tariff 
and  Taxes  and  by  the  Committee  on  Accounts,  in  conformity 
with  a  draft  drawn  up  by  the  Directive  Boards  of  the  border 
States  and  passed  upon  by  the  Imperial  Deputies.  With 
respect  to  the  salt  tax,  according  to  Art.  38,  3,  b,  those  costs 
"which  are  paid  as  salaries  to  the  officials  charged  with  the 
collection  and  control  of  this  tax  at  the  salt  works  "  are  to 
be  deducted  by  the  individual  State.  It  will  be  noted  that 
only  a  part  of  the  officials  connected  with  the  administration 
of  the  tax,  viz.  those  connected  with  the  works,  are  men- 
tioned. The  salaries  of  these  officials  are  to  be  borne  by  the 
Empire,  or,  in  other  words,  deducted  from  the  gross  receipts. 
A  change  was  introduced,  however,  by  the  same  act  of  the 
Bundesrat  in  1882,  mentioned  above,  and  the  expenses  of  the 
administration  of  the  salt  tax  were  also  fixed  by  the  Bundes- 
rat in  the  form  of  an  "Etat"  or  estimate,  which  took  the  place 
of  the  "lump  sum  system,"  and  a  scheme  was  adopted  which 
adjusted  the  payment  more  nearly  on  the  basis  of  service 
actually  rendered.  Article  38,  3,  c,  empowers  the  Bundesrat 
to  fix  the  amount  which  may  be  granted  to  the  States  from 
time  to  time  as  a  remuneration  for  the  administration  of  the 
tax  on  beet-sugar  and  on  tobacco.  The  same  article,  3,  d, 

1  See  discussion  by  Laband,  IV.,  pp.  462  ff.,  especially  p.  465,  where  he 
calls  attention  to  the  fact  that,  in  the  present  arrangement,  it  is  the  Bundes- 
rat alone  which  fixes  the  Etat  as  against  the  State,  and  that  the  part  given, 
under  the  Constitution,  to  the  Kaiser  and  Reichstag  in  fixing  the  Budget 
is  eliminated  here.  While  neither  the  Constitution  nor  Art.  16  of  the 
Cust.  Un.  Tr.  affords  a  sufficient  base  for  the  assumption  of  this  power  by 
the  Bundesrat,  the  Reichstag  has  not,  as  yet,  raised  an  objection. 


THE  GERMAN  EMPIRE 


also  provides  that  the  amount  deducted  for  the  cost  of  admin- 
istration shall  be  15  per  cent  of  the  total  receipts,  in  the  case 
of  the  other  taxes.  This  covers  the  administration  of  the 
tax  on  beer  and  on  brandy.  The  reimbursement  for  the  costs 
in  administering  the  tax  on  playing-cards  and  on  various  in- 
struments and  papers  is  fixed  by  the  laws  levying  these  taxes.1 

The  States  are  held  to  a  strict  application  of  the  imperial 
tax  and  tariff  laws.  No  State  can  claim  any  right  to  favor 
the  importation  of  raw  material  by  concessions  of  free  entry, 
or  to  encourage  the  export  of  manufactured  goods  by  draw- 
backs or  bounties.  Certain  articles  may  be  introduced 
into  the  States  without  payment  of  duties,  when  the  articles 
are  intended  for  the  household  of  the  ruler  or  for  ambas- 
sadors of  foreign  countries.2 

Each  State  having  a  customs  and  tax  administration  must 
render  account  of  the  business  transacted  by  it  to  the  Empire. 
It  must  have  a  system  of  bookkeeping  and  of  auditing  the 
amounts  collected  within  its  borders  to  the  account  of  the 
imperial  treasury,  and  it  must  balance  accounts  with  the  Em- 
pire. No  imperial  law  has  been  passed  regulating  the  de- 
tails of  this  matter.  The  principle  laid  down  in  the  time 
of  the  Zollverein,  and  now  become  a  part  of  the  constitutional 
system  of  the  Empire,  was  that  the  collection  and  adminis- 

1  For  the  stamp  tax  on  playing-cards,  see  Law  of  3  July,  1878,  §  23; 
for  the   stamp  tax  on   other  articles,  Law   of  10  June,    1869,  §  27;    to 
which  may  be  added   the   ScJiaumweinsteuergesetz  of  9   May,  1902,  §  28 
Cl.  i. 

2  These  articles  must  pass  through  the  hands  of  the  customs  officials, 
however,  who  shall  enter  them  in  the  Free  Register.  The  amount  which  would 
have  been  collected  on  these  articles  is  to  be  reckoned  against  the  account  of 
that  State  by  which  the  free  pass  is  furnished,  at  the  next  balancing  of  the 
receipts.     Cust.  Un.  Tr.,  Art.  16.     In  this  way  the  exemption  of  articles 
designed  for  the  ruler  or  for  ambassadors  in  one  State  does  not  have  to  be 
borne  by  the  other  States.     Any  exemption  of  articles  intended  for  ambas- 
sadors accredited  to  the  Empire  is  charged  to  the  account  of  the  Empire  itself. 


THE  CONSTITUTION  AND   IMPERIAL  FINANCE         293 

tration  of  the  tariff  and  of  the  taxes  on  articles  of  consumption 
should  be  left  to  each  State,  so  far  as  it  had  hitherto  per- 
formed this  service.  The  details  both  of  administration  and 
of  collection  are  regulated  by  instructions  issued  by  each 
several  State.  Most  of  these  regulations  have  been  in  opera- 
tion for  many  years  and  have  undergone  numerous  changes 
at  the  hands  of  the  various  ministers  and  Directive  Boards. 
The  Prussian  Instructions  of  28  May,  1818,  have  served 
as  a  model  after  which  the  larger  number  of  these  instruc- 
tions have  been  patterned.1  In  the  case  of  the  taxes  on 
articles  of  consumption,  however,  the  Bundesrat  has  passed 
certain  ordinances  touching  the  system  of  bookkeeping  and 
the  control,  and  certain  blank  forms  have  been  provided. 
The  Imperial  Stamp  Taxes  have  been  regulated  sharply  by 
the  Bundesrat  in  the  matter  of  their  collection  and  with 
respect  to  their  accounting. 

The  settlement  of  accounts  between  the  Empire  and  the 
several  States  is  regulated  by  Art.  39  of  the  Imperial  Con- 
stitution,2 which  provides  that  an  "abstract"  shall  be  made 
out  at  the  end  of  each  quarter,  and  a  "final  statement" 
at  the  end  of  each  year,  covering  the  revenues  due  the  im- 
perial treasury  from  the  customs  and  taxes.  These  ab- 
stracts and  final  statements  are  to  be  made  out  by  the  State 
authorities  charged  with  the  collection  of  the  revenues,  and, 
after  having  been  audited  by  the  Directive  Boards,  are  to  be 

1  See  Von  Mayr,  in  Stengel's  Worterb.  II.  p.  968.    Also  the  agreement  laid 
down  in  the  Munchner  Vollzugsprotokol  of  14  February,  1834,  §  25,  found 
in  Vertrage    und    Verhandlungen  uber  die    Bildung  und  Ausfuhrung    des 
deutschen  Zoll-  und  Handelsvereins,  Berlin,  1845-72,  II.  p.  271,  more  par- 
ticularly the    "  Aniveisung  Zur  Geschaftsjiihrung    eines    Hauptzollamtes," 
"  Regulativ  uber  die    Erhebungsbelugnisse    der    N  ebenzollamter    I   und   2 
Klasse,"   and  "  Anweisung  Zur  Geschajtsverwaltung  der  N  ebenzollamter  2 
Klasse." 

2  Compare  with  Cust.  Un.  Tr.  Art.  17. 


294  THE  GERMAN   EMPIRE 

combined  into  general  summaries.  Each  separate  tax  in 
these  summaries  is  to  be  authenticated,  and  the  summaries 
are  then  to  be  laid  before  the  Bundesrafs  Committee  on 
Accounts.  These  summaries  are  made  out  on  blank  forms 
prescribed  by  the  Bundesrat.  After  a  careful  inspection  of 
these  summaries,  the  Committee  on  Accounts  fixes  pro- 
visionally, every  three  months,  the  amount  due  the  imperial 
treasury  from  the  treasury  of  each  State,  informing  both 
the  Bundesrat  and  the  States  themselves  as  to  the  result 
of  its  calculations.  The  committee  also  lays  before  the 
Bundesrat  annually  a  final  determination  of  the  amounts 
due,  together  with  such  remarks  as  it  may  see  fit  to  append. 
The  Bundesrat,  taking  the  report  of  the  committee  and  such 
remarks  as  may  be  appended  thereto  as  a  guide,  definitively 
fixes  the  amount  due  for  the  year  from  each  several  State. 
These  provisions  of  the  Imperial  Constitution  have  been 
supplemented  somewhat  by  a  proclamation  of  the  Imperial 
Chancellor,  issued  13  January,  1872,  based  on  an  agreement 
with  the  Committee  on  Accounts.1  In  order  to  meet  the 
change  made  in  the  fiscal  year,  in  1877,  this  proclamation 
was  further  amended  by  a  resolution  of  the  Bundesrat, 
3  April,  i878.2  In  accord  with  these  enactments,  provisional 
summaries  are  to  be  made  monthly,  in  addition  to  the 
quarterly  and  annual  summaries  provided  for  by  the  Con- 
stitution. 

IV.  The  Expenses  of  the  Empire.  So  far  as  the  expen- 
ditures and  expenses  of  the  Empire  are  concerned,  the  general 
theory  prevails  that,  inasmuch  as  the  activity  of  the  Empire 
is  directed  toward  securing  and  advancing  the  interests  of 
all  its  members,  the  expenses  of  the  Empire  should  be  borne 
in  common  by  all  the  States.  But,  owing  to  the  peculiar 

1  See  Hirth's  Annalen,  1872,  pp.  1489  ff. 

*  Preussicher  Minislerialblatt  jur  die  Innere  Verwaltung,  1878,  p.  146. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         295 

position  occupied  by  some  of  the  States  in  the  Empire,  this 
theory  receives  considerable  wrenching  when  it  comes  to 
be  practically  applied.  Notable  exceptions  to  the  general 
principle  have  been  made  in  favor  of  the  States  enjoying  the 
so-called  "jura  singulorum"  These  exceptions  may  be 
briefly  mentioned.  The  expenses  of  the  Federal  Office  for 
Citizenship  —  Bundesamt  ]ur  das  Heimatswesen  —  are  not 
shared  by  Bavaria.  This  office  operates  under  the  Law  of 
6  June,  1870,  and  by  the  express  terms  of  the  Imperial 
Constitution  and  of  the  Treaty  of  Versailles  of  23  November, 
1870,  this  law  does  not  apply  to  Bavaria.1  This  law  has  not 
yet  been  extended  to  Alsace-Lorraine,  hence  that  territory 
also  contributes  nothing  to  the  expenses  of  the  office.  Only 
about  25  percent  of  the  expenses  of  the  Railroad  Office  are 
borne  by  the  States  in  common,  and  Bavaria  is  exempted 
from  the  remaining  75  per  cent  under  Art.  46,  Cl.  2,  of  the 
Imperial  Constitution,  which  frees  Bavaria  from  the  control 
of  this  office  in  most  essential  matters.  Moreover,  the 
peculiar  privileges  of  Bavaria,  Wiirttemberg,  Baden,  and 
Alsace-Lorraine,  with  reference  to  the  taxation  of  beer,  and 
the  transit  tax  on  it,  exempt  them  from  all  share  in  the  ex- 
penses connected  with  the  regulation  of  those  taxes.  Bavaria 
and  Wiirttemberg,  enjoying  "jura  singulorum"  with  respect 
to  the  administration  of  the  post  and  telegraph,  contribute 
a  small  amount  to  the  expenses  of  the  central  administration. 
The  fact  that  the  Court  of  Accounts  does  not  operate  equally 
in  all  the  States  disturbs  the  uniformity  of  contribution  to 
the  expenses  of  that  court.  Some  States  enjoy  special 
privileges  of  self-administration  in  certain  matters.  In 
these  States  the  expenses  of  the  Court  of  Accounts  are  borne 
only  in  a  certain  proportion  based  upon  the  extent  to  which 

1  See  RVerj.  Art.  4,  i ;  also  Treaty  with  Bavaria,  23  November,  1870,  III. 
§  i,  and  Schlussprotokol  of  the  same  I. 


296  THE  GERMAN   EMPIRE 

the  activity  of  the  court  extends  to  the  other  branches  of 
their  administration.  In  those  branches  of  administration 
where  the  activity  of  the  court  extends  to  all  the  States, 
each  State  contributes  its  proportion  to  the  expenses.  Alsace- 
Lorraine  pays  a  lump  sum,  —  an  aversum. 

Under  the  Imperial  Constitution,  the  power  to  send  am- 
bassadors to  foreign  courts  is  not  taken  away  from  the 
individual  States  of  the  Empire.  This  fact  has  an  effect 
upon  the  finances  of  the  Empire,  so  far  as  the  contribution 
of  the  States  to  the  expenses  of  maintaining  imperial  ambas- 
sadors is  concerned.  Where  a  State  maintains  an  ambassador 
at  a  foreign  court  at  which  the  Empire  also  maintains  a  repre- 
sentative, the  State  receives  a  rebate  of  one-half  the  amount  of 
the  contribution  which  it  is  ordinarily  required  to  make  to 
the  expenses  of  the  imperial  ambassador  at  that  same  court. 
In  consideration  of  Bavaria's  diplomatic  service,  and  in 
view  of  the  fact  that  in  those  places  where  Bavaria  maintains 
an  embassy  the  duties  of  the  imperial  embassy  in  caring  for 
Bavaria's  interests  are  relieved,  Bavaria,  by  reason  of  con- 
cessions made  at  the  time  of  its  entrance  into  the  Empire, 
enjoys  a  rebate  which  amounts  to  the  whole  of  the  con- 
tribution which  Bavaria  should  be  expected  to  make  to  the 
expenses  of  those  ambassadors  of  the  Empire  who  are 
stationed  in  lands  where  Bavaria  also  maintains  her  own 
representatives.  The  imperial  ambassadors,  in  the  course 
of  their  duties,  attend  to  many  special  matters  for  Prussia. 
As  an  equivalent  for  these  services,  Prussia  pays  annually 
into  the  imperial  treasury  an  aversum  of  90,000  marks. 

Bavaria  enjoys  certain  special  privileges  in  matters  mili- 
tary. This  fact  affects  Bavaria's  share  in  the  expenses  of  the 
Imperial  Military  Court.  In  the  organization  of  this  court, 
Bavaria  has  been  granted  a  special  senate.  The  special 
expenses  of  the  Bavarian  senate  are  borne  by  Bavaria 


THE   CONSTITUTION   AND    IMPERIAL   FINANCE         297 

alone,  but  that  State  makes  no  contribution  to  the  special 
expenses  of  the  othei  senates.  The  Imperial  Military 
Court,  however,  is  the  highest  criminal  court  for  the  navy. 
Bavaria,  therefore,  is  required  to  contribute  a  proportionate 
share  to  the  general  expense  based  upon  the  effective  naval 
force  furnished  by  that  State. 

The  " Sonderrechte" — -special  rights  —  play  a  prominent 
part,  also,  in  so  far  as  the  contribution  of  the  various  States 
to  the  payment  of  the  interest  and  principle  of  the  imperial 
debt  is  concerned.  The  debt  was  contracted  by  the  Empire 
and  the  Empire  is  responsible  for  it.  But  the  obligations 
laid  upon  the  several  States,  with  respect  to  their  share  in 
the  liquidation  of  the  debt  and  the  meeting  of  the  interest, 
are  not  equal.  The  loans  out  of  which  the  debt  arose  were 
used  largely  for  military  purposes  and  for  expenses  con- 
nected with  the  administration  of  the  post  and  telegraph. 
But,  under  the  special  rights  which  Bavaria  enjoys,  that 
State  is  exempt  from  all  obligation  to  contribute  to  either 
of  these  objects,  and  for  that  reason  Bavaria  has  no  share 
in  that  portion  of  the  debt  created  for  these  ends.  Wiirt- 
temberg  is,  for  the  same  reason,  exempt  so  far  as  the  expen- 
ditures for  post  and  telegraph  are  concerned.  All  States 
contribute  to  the  liquidation  of,  and  to  the  payment  of  the 
interest  on,  that  part  of  the  imperial  debt  which  does  not 
concern  matters  with  respect  to  which  certain  States  enjoy 
special  privileges.  All  States,  save  Bavaria,  contribute  to 
that  part  of  the  debt  contracted  for  military  purposes,  while 
all  States  except  Bavaria  and  Wiirttemberg  share  in  the 
debts  arising  from  the  postal  and  telegraph  administration. 

This  same  system  of  grouping  is  seen  in  the  matter  of 
covering  deficits.  Whether  a  State  shall  contribute  to  the 
meeting  of  a  deficit  which  may  occur  in  any  branch  of  the 
administration  of  the  Empire,  depends  on  the  relation  of 


298  THE  GERMAN  EMPIRE 

that  State  to  the  branch  of  the  service  in  which  the  deficit 
is  found.1 

V.  The  " Proportional  Assessments"  oj  the  Several  States. 
—  In  no  part  of  the  imperial  governmental  system  of  Germany 
has  so  little  real  skill  been  displayed  as  in  the  development  of 
imperial  finance.  The  handling  of  this  matter  has  not  only 
been  unsatisfactory,  but  it  has  been  no  less  contrary  to  the 
Constitution  than  it  has  been  inconsistent  with  the  prin- 
ciples of  sound  financiering.  The  difficulty  has  certainly  not 
been  due  to  any  lack  of  a  scientific  understanding  of  the 
principles  of  finance  on  the  part  of  German  economists  and 
statesmen,  but  rather  to  the  conflict  of  political  theories  and 
the  clash  of  economic  interests.  The  best  that  can  be  said 
of  the  system  pursued  for  a  generation  in  Germany,  is  that 
it  is  both  clumsy  and  inadequate.  The  legislation  respecting 
the  customs  and  the  taxes  has  been  marked  by  vacillation 
and  superficiality.  It  has  been  a  system  of  "  patch  work 
and  tinkering,"  rather  than  of  sober,  thorough  revision  and 
construction  on  definite  and  sound  lines. 

Before  Germany,  as  before  every  federal  State,  two  ways 
lay  open  in  the  organization  of  the  imperial  finance :  either 
to  create  a  unitary  system,  an  independent  system  of  imperial 
taxation,  where  the  taxes  should  be  fixed  and  levied  by 
imperial  law,  where  the  revenues  should  flow  into  the  im- 
perial treasury  and  be  disbursed  for  the  sole  use  of  the 
Empire;  or,  to  develop  a  federal  system,  where  the  fixing 
and  levying  of  taxes  should  become  matters  of  State  legisla- 

1  Thus,  Bavaria  would  not  contribute  to  the  covering  of  a  deficit  in  the 
military  administration.  Bavaria  and  Wiirttemberg  would  be  exempt 
from  sharing  in  the  payment  of  a  deficit  in  the  postal  and  telegraph  adminis- 
tration. A  deficit  in  the  brewing  tax  would  not  affect  Bavaria,  Wiirttemberg, 
Baden,  or  Alsace-Lorraine,  while  so  far  as  a  deficit  in  the  payment  of  the 
imperial  debt  is  concerned,  the  States  would  fall  into  the  three  groups  noted 
in  the  preceding  paragraph  of  the  text. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         299 

tion  and  where  the  expenses  of  the  Empire  should  be  met  by 
a  system  of  assessments  upon  the  several  States.  The 
Empire  adopted  the  more  centralized  method,  though  with 
a  temporary  modification  of  a  federalistic  nature.1  Article 
70  of  the  Imperial  Constitution  provides  that  in  so  far  as  the 
imperial  expenses  are  not  met  by  the  imperial  revenues, 
together  with  such  surplus  as  may  remain  from  the  preceding 
year,  the  deficit  shall  be  covered  by  an  assessment  upon  the 
several  States  in  proportion  to  their  population.2  It  is  to  be 
specially  noted,  however,  that  this  scheme  of  assessment 
was  to  be  resorted  to  only  so  long  as  imperial  taxes  were  not 
yet  introduced  to  meet  the  expenses.  These  assessments 
are  known  as  Matrikularbeitrage,  or  proportional  assess- 
ments.3 

Although  it  is  plain,  from  the  wording  of  Art.  70,  that 
this  system  of  assessments  upon  the  several  States  in  order 
to  cover  deficits  in  imperial  finances  was  designed  merely 
as  a  temporary  expedient,  two  things  served  to  prolong  its 
existence.  One  was  the  development  of  the  various  State 
groups,  in  the  matter  of  receipts  and  expenditures,  already 
referred  to  in  the  preceding  section, — the  groups  occasioned 
by  the  entry  of  the  South  German  States  and  Alsace-Lorraine 
with  their  peculiar  exemptions.  The  system  of  proportional 
assessments  serves  to  equalize  these  differences  in  the  relation 
of  the  various  groups  to  the  Empire  in  financial  matters, 
increasing  the  assessment  of  those  States  which  have  no 
share  in  the  common  receipts  and  decreasing  the  assessment 

1  See  Meyer,  Verwaltungsr.  II.  p.  396;   Laband,  IV.  pp.  375  ff. ;   Hanel, 
I.  pp.  361  ff. ;    Wagner,  op.  oil.  pp.  646  ff.,  792  ff. 

2  For  a  sharp  criticism  upon  the  manifest  unfairness  of  this  system,  see 
Wagner,  op.  cit.  pp.  806  ff.,  also  p.  655,  last  paragraph  of  §  201. 

3  See  Von  Heckel,  in  Conrad's  Handworterb.  V.  pp.  737,  and  literature 
therein  cited;  Laband,  IV.  pp.  474  ff.;   Meyer,  Staatsr.  pp.  698  ff. ;  Ver- 
waltungsr. II.,  pp.  396  ff.;  Kirchenheim,  Staatsr.  pp.  414  ff. 


3OO  THE  GERMAN  EMPIRE 

of  those  which  do  not  share  in  the  common  expenses.1  The 
second  thing  which  has  tended  to  preserve  the  system  has 
been  the  passage  of  the  so-called  "Frankenstein  Clause," 
and  subsequent  legislation  down  to  1904.  It  will  be  recalled 
that  Art.  4  of  the  Imperial  Constitution  draws  within  the 
competence  of  the  Empire  legislation  on  customs  duties  and 
on  taxes  to  be  applied  to  imperial  ends.  Article  33  of  the 
Constitution  declares  that  Germany  shall  constitute  a  single 
tariff  district,  while  Art.  35  places  the  legislation  on  matters 
of  tariff  and  with  respect  to  the  taxation  of  salt  and  tobacco 
manufactured  within  the  Empire,  as  well  as  with  respect 
to  the  taxation  of  beer,  brandy,  and  sugar,  and  syrup  made 
from  beets  or  other  domestic  products,  exclusively  in  the 
hands  of  the  Empire.  In  1879  a  law  was  passed  increasing 
the  tax  on  tobacco  and  raising  the  customs  duties.2  The 
Imperial  Stamp  Tax  Law  was  enacted  in  i88i,3  while  in 
1887  the  law  regulating  the  taxation  of  brandy  was  passed.4 
These  three  laws  increased  the  revenue  of  the  Empire. 
What  is  known  as  the  "Frankenstein  Clause"  is  §  8  of 
the  Law  of  15  July,  1879.  This  clause  reads  as  follows: 
"When  in  any  year  the  revenue  from  the  customs  duties 
and  the  tax  on  tobacco  shall  exceed  the  sum  of  130,000,000 
marks,  the  surplus  shall  be  handed  over  to  the  States  accord- 
ing to  the  ratio  of  population  upon  which  their  proportional 
assessment  is  reckoned."5  Similarly,  according  to  §  32 

1  Meyer,  Venualtungsr.  II.  p.  397 ;  Von  Heckel,  op.  cit.  p.  738. 

1  RGBl.  p.  207.    Revised  by  Proclamation  of  24  May,  1885  (RGBl. p.  in). 

8  Ibid.  p.  185.  Revised  27  April,  1894  (RGBl.  p.  381),  and  14  June,  1900 
(RGBl.  p.  260). 

*  RGBl.  p.  253. 

5  This  clause  was  a  compromise  measure,  introduced  by  the  Centrum 
Party.  For  a  brief  discussion  of  the  proceedings  in  the  Reichstag,  with  the 
speech  of  Bismarck,  see  Schulthess,  Geschichts-Kalendar  for  1879.  For  gen- 
eral debate,  see  Sten.  Ber.  des  Reichstags,  1879,  pp.  927  ff.,  2179  ff.,  and 
2241  ff. 


THE  CONSTITUTION  AND   IMPERIAL  FINANCE         301 

of  the  Law  of  i  July,  1881,  the  receipts  from  the  Imperial 
Stamp  Tax  were  to  flow  into  the  imperial  treasury,  and, 
after  certain  costs  were  deducted,  the  remaining  amount  was 
to  be  handed  over  to  the  States  on  the  same  basis.1  Section  39 
of  the  Lawof  24  June,  1887,  also  provides  that  the  net  revenue 
from  the  consumption  tax  on  brandy  should  be  distributed 
among  the  States  belonging  to  the  district  in  which  the  tax 
operated  on  the  same  principle.  The  " Frankenstein  Clause" 
expressly  defeated  the  plain  intent  of  the  Constitution  that 
the  ''proportional  assessments"  should  be  a  temporary 
expedient.  This  was  the  aim  and  purpose  of  the  clause, 
and  subsequent  legislation,  as  seen,  was  dominated  by  the 
same  idea.2  The  system  of  "  Matrikularbeitrage "  was  re- 
tained, and  another  system,  a  system  of  rebates  or  donations, 
was  erected  beside  it.  If  the  Imperial  Constitution,  by  the 
introduction  of  "proportional  assessments"  upon  the  several 
States,  aimed  to  make  a  deficit  impossible,  subsequent 
legislation  seemed  bent  on  making  a  surplus,  or  at  least  a 
reserve  fund,  equally  impossible.  Nowhere  in  the  Consti- 
tution is  there  any  authority  for  this  system  of  "donations" 
to  the  several  States.3  This  system  created  a  close  reciproc- 

1  §  32  of  the  Law  of  i  July,  1881,  is  §  45  in  the  revision  of  1894,  and 
§  55  in  the  revision  of  1900. 

1  See  also  Law  of  16  April,  1896  (RGBl.  p.  103);  24  May,  1897  (RGBl. 
p.  95) ;  31  March,  1898  (RGBl.  p.  138) ;  25  March,  1899  (RGBl.  p.  189) ;  30 
March,  1900  (RGBl.  p.  173).  By  this  legislation,  in  some  instances  the  amount 
fixed  by  the  "Frankenstein  Clause"  at  130,000,000  marks  was  raised  con- 
siderably, and  in  addition  a  certain  proportion  of  any  surplus  which,  under 
the  clause,  would  fall  to  the  several  States  was  retained  by  the  Empire 
and  applied  to  the  payment  of  the  imperial  debt.  The  proportion  ranged 
from  one-half  to  three-fourths. 

3  See  Hanel,  I.  p.  383 ;  Laband,  IV.  pp.  378,  476.  The  fact  is  that  the  Con- 
stitution has  been  practically  amended,  not  in  the  manner  prescribed  by  the 
Constitution  itself,  but  by  ordinary  legislation.  It  differs  from  a  regular  amend- 
ment in  conferring  no  constitutional  or  "well-earned"  right  on  the  part  of 
the  States  to  a  continuance  of  these  donations.  See  Hanel,  op.  cit,  p.  384. 


302  THE  GERMAN  EMPIRE 

ity  between  the  Empire  and  the  States  in  financial  matters. 
On  the  one  hand,  certain  imperial  receipts  were  to  be  dis- 
tributed among  these  States,  while,  on  the  other  hand,  the 
States  were  obligated  to  cover,  by  their  proportional  con- 
tributions, the  difference  between  the  revenues  and  the 
expenditures  of  the  Empire.  Speaking  of  the  system  under 
the  "Frankenstein  Clause,"  Adolf  Wagner,  the  greatest 
writer  on  finance  in  Germany,  says:  "This  is  a  financial 
system  which  appears  thoroughly  mechanical,  is  in  every 
respect  a  doubtful  one,  works  after  the  manner  of  a  poll- 
tax,  disturbs  the  finances  of  the  individual  States,  is  incon- 
sistent with  the  character  of  a  federal  State,  smacks  of  the 
old  Staatenbund,  seriously  impairs  the  clearness  of  the  financial 
relations,  veils  the  true  portrait  of  financial  conditions.  It 
is  true  that  through  the  distribution  of  the  surplus  according 
to  the  number  of  the  population  the  poll- tax- like  working 
of  the  system  of  "proportional  assessments"  is  at  least 
balanced,  but  this  solitary  advantage  is  not  of  sufficient 
weight  to  justify  this  whole  system  of  contributions  on 
the  one  hand  and  donations  on  the  other."  1 

1  Wagner,  op.  cit.  p.  655.     See  also  Laband,  IV.  pp.  378  ff.     It  may  be 

interesting  to  note  the  result  of  this  system.     The  following  table  is  taken 

from  Wagner,  op.  cit.  p.  654,  and  from  the  Statist.  Jahrbuch  jur  das  Reich, 

1903:  — 

YEAR          DONATION        CONTRIBUTION    DIFFERENCE  IN  +  AND  — 

1880  32.243  81,671         -  49,428 

1881  68,024          103,288         -  35,264 

1882  83,456          103,684         —  20,228 

1883  85,503          92,7J9        -  7»2i6 

1884  105,027  84,445  +  20,582 

1885  "5»792  122,437  -  6,645 

1886  137,057  139.218  —  2,161 

1887  I76.324  186,937  -  10,613 

1888  277,801  2I9.37S  +  58,426 

1889  355.°34  228,183  +126,851 

1890  378,9I4  31 2,41 5  +  66,499 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         303 

The  bad  effect  of  such  a  vacillation  upon  the  finances 
of  the  individual  States  will  be  at  once  apparent. 

On  the  14  May,  1904,  a  law  was  passed  which  reads  as 
follows :  — 

"§  i.  The  provision  respecting  the  handing  over  of  a 
part  of  the  proceeds  of  the  customs  duties  and  of  the  tobacco 
tax  to  the  individual  States  (§  8  of  the  Tariff  Law,  pub- 
lished through  the  Proclamation  of  24  May,  1885,  RGBl. 
in),  is  repealed. 

"The  net  revenue  from  the  mash- vat  tax,  and  from  the  tax 
on  materials  out  of  which  brandy  is  prepared,  is  to  be  handed 
over  to  the  several  States  in  the  proportion  which  their  popu- 
lation sustains  to  the  whole  population  of  the  territory  in- 
cluded in  the  jurisdiction  of  the  brandy  tax. 

"  §  2.  Art.  70  of  the  Constitution  shall  receive  the  follow- 
ing wording :  — 

"Article  70 

"For  meeting  all  the  common  expenditures  there  shall  be 
used,  first  of  all,  the  general  revenues  which  flow  in  from  the 
customs  duties  and  common  taxes,  from  the  Railroad,  Postal 
and  Telegraph  Administration  and  from  all  other  adminis- 

VEAR          DONATION        CONTRIBUTION    DIFFERENCE  IN  +  AND  — 

1891  383.377  326.734  +  56>643 

1892  358,925  327.36o  +  31,565 

1893  338,759  380,064  -  41,305 

1894  382,860  397.497  ~  14,637 

1895  400,126  396,000  +  4,126 

1896  414,568  399.374  +  I5.I94 

1897  433."5  419,899  +  13,216 

1898  467,586  454,859  +  12,727 

1899  476,738  489,954  -  13,216 

1900  514,940  527,662  —  12,722 
19«  555,704  570,933  -  15,229 
1902  544,235  580,640  -  36,405 
J9°3  542,092  565,856  -  23,764 


304  THE  GERMAN  EMPIRE 

trative  branches.  In  so  far  as  the  expenses  are  not  covered 
by  these  receipts,  they  shall  be  met  by  contributions  of  the 
several  States,  on  the  basis  of  their  population,  which  con- 
tributions shall  be  imposed  by  the  Imperial  Chancellor  in  the 
amount  required  by  the  budget.  Should  these  contribu- 
tions not  be  covered  by  the  amounts  to  be  handed  over  to  the 
several  States,  they  are  to  be  refunded  to  the  several  States 
in  such  measure  as  the  other  ordinary  income  of  the  Empire 
may  exceed  its  needs. 

"  Any  surplus  from  former  years  shall  be  employed,  so  far  as 
the  law  fixing  the  budget  does  not  provide  otherwise,  to  meet 
the  common  extraordinary  expenses. 

"Sec.  3.  This  law  shall  go  into  effect  from  the  first  of  April, 
1904."  l 

While  this  law  removes  much  that  was  objectionable  in  the 
imperial  financial  system,  it  has  not  eliminated  all  the  awk- 
wardness and  clumsiness  which  has  hitherto  characterized  that 
system,  and  there  still  remains  much  to  be  desired. 

So  far  as  their  nature  is  concerned,  the  "proportional  assess- 
ments" are  taxes  levied  by  the  Empire  upon  the  individual 
States  by  reason  of  its  sovereignty.2  In  fixing  the  amount  of 
the  tax,  the  population  of  the  State  is  taken  as  a  basis.  Opin- 
ions have  differed  as  to  the  meaning  of  the  word  "population" 
in  this  connection.  The  Rundesrat,  however,  on  28  March, 
1882,  declared  by  resolution  that  the  definitive  fixing  of  the 
"proportional  assessments"  as  well  as  the  settlement  of 
accounts  with  respect  to  the  general  customs  and  tax  re- 
ceipts, should  be  based  on  the  number  of  inhabitants,  irre- 
spective of  State  citizenship.8 

1  RGBl.  p.  169. 

1  Meyer,  Verwaltungsr.  II.  p.  399 ;  Hanel,  I.  p.  375 ;   Laband,  IV.  pp. 

474  ff- 

3  Laband,  IV.  p.  479. 


THE  CONSTITUTION   AND   IMPERIAL  FINANCE         305 

The  amount  of  the  proportional  assessments  is  determined 
by  the  budget  of  the  Empire,  and  can  be  definitely  fixed 
only  at  the  close  of  the  fiscal  year.  The  levying  of  the  as- 
sessments is  made  by  the  Imperial  Chancellor,  who  may  not 
exceed  the  amount  required  by  the  budget,1  even  in  cases 
where  the  losses  or  deficits  in  other  receipts  of  the  Empire 
would  indicate  a  necessity  for  such  increase.2  Such  an  in- 
crease would  require  a  new  fixing  of  the  budget. 

VI.  The  Imperial  Budget.3— Ey  "Budget,"  "Staats- 
haushaltetat"  "  Hauptfinanzetat,"  or  simply  "Etat,"  is  meant 
a  complete,  systematically  arranged,  and  balanced  estimate, 
or  summary,  of  the  receipts  and  expenditures  incident  upon 
the  administration  of  a  State  for  a  certain  fixed  future  period. 
In  other  words,  it  is  the  periodic  forecast  of  the  fiscal  needs 
of  a  State  and  the  provision  for  meeting  those  needs.  The 
budget,  therefore,  is  a  matter  of  calculation,  —  not  a  calcula- 
tion of  the  receipts  already  collected  or  of  the  expenditures 
already  made,  but  a  prior  computation  of  the  income  and  of 
the  anticipated  liabilities.4 

Article  69  of  the  Constitution  provides  that  "  all  the  receipts 
and  expenditures  of  the  Empire  must  be  estimated  for  each 
year  and  brought  into  the  imperial  budget.  This  latter  shall 
be  fixed  by  law  before  the  beginning  of  each  year."  The 
establishment  of  the  budget,  therefore,  takes  place  within  the 
forms  of  ordinary  legislation,  and  the  cooperation  of  the 

1  RVerf.Art.  70. 

2  See  discussior  with  respect  to  the  attempt  of  the   Imperial  Chancellor 
to  increase  the  amount  of  the  assessment  in  1868,  in  Hirth's  Annalen,  1869, 
pp.  274  ff. ;  Laband,  IV.  p.  475 ;  Meyer,  op.  cit.  II.  p.  399. 

3  For  the  most  important  literature  upon  the  subject,  see  Laband,  IV. 
p.  481,  note;   also  his  discussion  of  recent  literature  in  appendix  to  IV.  pp. 
532  ff.     See  also  bibliography  appended  to  Jellinek's  article  "  Budgetrecht," 
in  Conrad's  Handworterb.  II.  p.  1164. 

4  Hanel,  Studien,  II.  p.  215,  takes  exception  to  the  designation  of   the 
Budget  as  a  "Rechnung."     Compare  Laband,  IV.  p.  482. 


306  THE  GERMAN   EMPIRE 

popular  branch  of  the  legislature  in  determining  the  most 
important  question  of  imperial  finance  is  assured.  Further, 
the  provisions  of  the  Constitution  with  respect  to  all  other 
proposed  legislation  find  application  also  to  the  bill  fixing 
the  budget.1 

The  fiscal  period  of  the  Empire  is  one  year,  then,  according 
to  the  wording  of  Art.  69  of  the  Constitution.2  This  neces- 
sitates the  fixing  of  a  special  budget  each  year,  covering  the 
receipts  and  expenditures  of  the  whole  twelve  months.  This 
principle  harmonizes  with  Art.  71,  Cl.  i,  of  the  Constitution, 
which  provides  that  the  general  expenditures  shall,  as  a 
rule,  be  granted  for  a  single  year,  but  that  in  special  cases 
they  may  be  granted  for  a  longer  period.  When  a  sum  is 
granted  for  a  special  work,  the  accomplishment  of  which  will 
cover  a  number  of  years,  the  amount  to  be  expended  in  each 
year  is  taken  up  into  the  budget  law  for  that  year  as  an 
integral  part  of  it.3 

The  budget  must  be  fixed  before  the  beginning  of  the  fiscal 
year,4  how  long  before  is  not  stated  in  the  Constitution.  Article 
69  merely  sets  the  latest  time  up  to  which  the  budget  may  be 
fixed.  Nor  is  there  anything  to  prevent  the  fixing  of  the 

1  Such  a  bill,  that  is,  requires  the  consent  of  a  majority  of  the  Bundesrat 
and  Reichstag  in  order  to  become  a  law.    It  is  also  subject  to  the  restric- 
tions laid  down  in  Art.  5,  Cl.  2,  and  in  Art.  78,  Cl.  2,  of  the  RVerj.     Art.  7, 
Cl.  4,  however,  is  not  applicable.     Meyer,  Staatsr.  p.  701,  note  4;  Laband, 
IV.  p.  484.      The  budget   law  is  to  be  promulgated  and  published  by  the 
Kaiber  in  the  usual  form,  and  the  Chancellor  assumes  responsibility.     There 
is  no  provision  in  the  Constitution  that  all  "money  bills"  shall  originate  in 
the  popular  branch  of  the  legislature. 

2  Up  to  i  April,  1877,  the  fiscal  year  coincided  with  the  calendar  year. 
By  the  Law  of  29  February,  1876  (RGBl.  p.  126),  the  fiscal  year  was  changed, 
so  that  since  i  April,  1877,  it  has  begun  on  i  April  and  ended  31  March. 

*  Laband,  IV.  p.  485.    Art.  69  requires  that  all  the  receipts  and  expenditures 
shall  be  included  in  the  estimate  in  order  that  a  complete  summary  of  the 
whole  financial  schedule  may  be  had. 

•  Art.  69  of  the  RVerj. 


THE   CONSTITUTION   AND   IMPERIAL   FINANCE         307 

budget  for  two  or  more  consecutive  years,  as  Laband  observes, 
provided  that  the  budget  of  each  year  is  kept  separate  and 
distinct,  and  each  is  fixed  by  a  special  law  for  the  one  year.1 

VII.  The  Granting  of  Expenditures.2  —  While  Art.  70 
of  the  Constitution  lays  down  the  broad  principle  that  the 
general  expenditures  shall  be  granted  for  one  year,  it  does  not 
lay  down  a  rule  as  to  how  far  the  granting  of  these  expen- 
ditures may  be  regarded  as  purely  discretionary  on  the  part  of 
the  Reichstag,  and  how  far  it  must  be  looked  upon  as  an  obli- 
gation. May  certain  expenditures,  then,  be  refused,  consti- 
tutionally ?  One  of  the  most  fundamental  principles  of  con- 
stitutional law  is  that  existing  rights  and  institutions  of  the 
State,  founded  in  law,  may  be  amended  and  changed  only  with 
the  consent  of  the  sovereign  and  of  the  representatives  of  the 
people,  and  not  by  a  one-sided  act  of  either  of  these  organs 
alone.  It  follows  as  an  irrefutable  consequence,  that  the 
Reichstag  cannot  suspend  or  repeal  existing  laws  by  a  one- 
sided refusal  to  furnish  the  means  necessary  to  the  execution 
of  them;  that  the  continuance  in  force  of  the  imperial  laws 
and  the  permanence  of  imperial  institutions  shall  not  be 
put  annually  into  the  hands  of  the  Reichstag,  to  be 
granted  or  suppressed  at  pleasure.3  It  follows  that  the 
right  of  the  Reichstag  to  grant  expenditures  is  limited 
and  bound  by  the  existing  laws  and  institutions  of 
the  Empire,  and  that  the  expenditures  which  are  necessary 
to  the  carrying  out  and  maintenance  of  the  same  may  not  be 

1  See  Meyer,  Staatsr.  p.  700,  note  3 ;  Laband,  IV.  p.  486.     This  actually 
took  place  in  the  session  of  the  Reichstag  for  1882-83.    See  Law  of  2  March, 
1883  (RGBl.  p.  5),  and  of  2  July,  1883  (RGBl.  p.  125).     This  action  was 
vigorously  contested  in  the  Reichstag  on  the  ground  of  unconstitutionality. 
See  Sten.  Ber.  I.  pp.  659  ff.  (1882). 

2  On  this  topic  the  argument  of  Laband  is  followed,  IV.  pp.  490  ff. 

3  This  is  the  general  position  of  German  jurists.     See  Laband,  IV.  p. 
490,  note  2. 


308  THE  GERMAN  EMPIRE 

refused.  The  budget  is  not  a  law  organizing  the  whole 
Empire  for  each  year.  It  is  a  plan  of  administration,  a  pro- 
gramme. It  presumes,  therefore,  a  legally  established  organ- 
ization as  a  fixed  foundation. 

So  far,  then,  as  the  right  of  the  Reichstag  to  grant  them  is 
concerned,  the  expenditures  fall  into  two  categories:  those 
which  may  be  designated  as  discretionary,  and  those  which 
may  be  classed  as  necessary  from  the  standpoint  of  consti- 
tutional law.  The  first  group  may  be  refused  by  the  Reichs- 
tag at  pleasure,  and  its  consent  has  the  character  of  an 
actual  grant,  without  which  the  imperial  government  is  not 
authorized  to  make  the  expenditures  at  all.  The  second 
group,  however,  may  not  be  stricken  from  the  budget  by 
either  Bundesrat  or  Reichstag  alone,  without  the  consent  of 
the  other.  The  granting  of  these  expenditures  is  the  con- 
stitutional duty  of  the  Reichstag  and  does  not  partake  of  the 
character  of  an  authorization  of  the  government  to  pay,  but 
of  a  recognition  of  the  necessity  or  appropriateness  of  the 
expenditures.  The  proper  legal  ground  on  which  the  ex- 
penditures rest  is  found  in  the  imperial  law  or  treaties. 
Formally,  all  these  expenditures  are  also  subject  to  the  grant 
of  the  Reichstag,  since  the  budget  law,  like  all  other  laws, 
can  contain  nothing  which  has  not  the  consent  of  the  Reichs- 
tag; but  materially  this  is  no  true  grant,  for  the  reason  that 
the  Reichstag  is  not  empowered  to  refuse  it.  The  Imperial 
Constitution  contains  no  provision  from  which  a  free,  unre- 
stricted right  of  grant  on  the  part  of  the  Reichstag  may  be 
derived.  Article  69  declares  that  all  receipts  and  expenditures 
shall  be  estimated  for  each  year  and  brought  into  the  imperial 
budget,  giving  to  the  budget,  thereby,  the  nature  and  sig- 
nificance of  a  forecast.  Article  69  further  declares  that  the 
budget  shall  be  fixed  by  a  law,  and  lays  down,  thereby, 
the  form  in  which  the  forecast  shall  take  definite  shape  and  the 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         309 

share  which  falls  to  the  Reichstag  in  the  matter.  Article  71, 
finally,  lays  down  the  principle  to  be  followed  in  fixing  the 
budget,  viz.  tha  expenditures  shall  be  granted  for  one  year, 
as  a  rule,  but  that  in  special  cases  they  may  be  granted  for  a 
longer  period.  This  principle  relates,  however,  only  to  the 
time  for  which  an  expenditure  shall  be  granted.  The 
duration  of  the  grant  forms  the  sole  object  of  the  provision  of 
Art.  71.  On  the  other  hand,  this  article  says  nothing  about 
the  conditions  under  which  an  expenditure  needs  a  grant, 
still  less  does  it  contain,  presuppose,  or  hint  at  a  rule  to  the 
effect  that  the  grant  of  the  Reichstag  is  the  necessary  and  in- 
dispensable condition  to  the  right  of  the  government  to  make 
any  expenditures  at  all. 

The  receipts  of  the  Empire  from  the  various  sources  out 
of  which  its  income  is  derived  flow  into  the  imperial  treasury. 
This  is  a  matter  entirely  distinct  and  separate  from  any  item 
or  items  in  the  budget,  and  is  in  no  wise  dependent  on  any- 
thing contained  therein.  These  receipts,  therefore,  require  no 
grants  from  the  Reichstag.  They  rest  on  legal  foundations 
of  a  permanent  character  and  need  no  annual  grant.  New 
sources  of  revenues,  however,  whether  in  the  form  of  new 
taxes  or  loans  or  what  not,  or  whether  arising  from  the  sale 
of  property  belonging  to  the  Empire,  can  be  created  only  by 
and  with  the  consent  of  both  branches  of  the  legislature.1 

An  interesting  question  arises  as  to  the  method  to  pursue 
when,  from  whatever  cause,  a  budget  law  is  not  passed  be- 
fore the  beginning  of  the  fiscal  year.  Such  a  situation  might 
arise  from  a  variety  of  causes.  So  far  as  the  solution  of  the 
question  is  concerned,  the  cause  is  wholly  irrelevant  and  im- 

1  See  RVerf.  Art.  73.  Also  Law  of  25  May,  1873  (RGBl.  p.  115),  §  10, 
which  reads,  "All  receipts  from  the  sale  of  real  estate,  materials,  imple- 
ments, or  other  objects  belonging  to  the  imperial  administration,  shall  be 
estimated  for  each  year  and  brought  into  the  imperial  budget." 


310  THE  GERMAN  EMPIRE 

material.  In  the  cases  which  have  occurred  in  the  history  of 
the  Empire,  the  problem  has  been  solved  by  extending  for  one 
month,  by  law,  the  Budget  of  the  fiscal  year  just  ended.1  This 
does  not  satisfy  the  provisions  of  Art.  69  of  the  Constitu- 
tion, but  it  is  justified  on  general  grounds,  both  constitutional 
and  political.  The  declaration  of  Art.  69  that  the  budget 
shall  be  fixed  annually  by  law,  releases  the  administration 
from  all  responsibility  in  the  fixing  of  the  budget.  It  is  not 
released,  however,  from  its  obligation  to  perform  the  func- 
tions of  government  in  conformity  with  the  legal  organization 
of  the  Empire,  and  in  conformity  with  the  institutions  resting 
on  permanent  laws.  The  integrity  and  efficiency  of  the 
Empire  cannot  be  made  to  hang  upon  the  passage  of  a  fiscal 
programme  in  the  form  of  law.  The  administration  is  there- 
fore justified  in  carrying  on  the  necessary  and  permanent 
branches  of  government,  with  the  expenditures  involved  in 
so  doing,  on  its  own  responsibility,  until  the  proper  and 
regular  budget  may  be  forthcoming.  As  Laband  puts  it:2 
"As  necessary  in  a  political  sense  may  be  designated  those 
expenditures  to  which  the  government  is  legally  obligated. 
.  .  .  The  right  and  duty  to  meet  these  expenditures  exist 
without  a  budget  law,  and  hence  it  cannot  be  regarded  as 
a  breach  of  the  Constitution  when  the  government  meets 
these  expenditures  although  no  budget  law  has  consti- 
tutionally come  into  being.  The  doctrine  may  be  for- 
mulated thus:  expenditures  which  the  Bundesrat  and 
Reichstag,  in  fixing  the  budget,  may  not  on  legal  grounds 
refuse,  are  to  be  made  by  the  government  even  in  case 
the  legal  fixing  of  the  imperial  Budget  does  not  occur." 
Laband  also  holds  that  expenditures  which  may  be  termed 

'See  Law  of   26  March  (RGBl.  p.  407);    Law  of    30  March,   1878 
(RGB1.  p.  9). 

2  Laband,  IV.  pp.  510,  511. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         311 

discretionary,  i.e.  such  as  are  not  legally  binding  on  the 
government,  may  be  made  on  the  government's  own  re- 
sponsibility, in  case  of  failure  to  pass  a  budget  law,  if  the 
interests  of  the  State  demand  it.  "  For  it  is  nonsense  to  sub- 
ject the  administration  of  a  State  to  the  fiction  that  no  State 
interest  can  be  pressing,  no  expenditure  necessary,  whose 
urgency  and  necessity  have  not  been  previously  recognized 
by  a  law." 

The  receipts  of  the  Empire  would  be  but  little  affected  by 
the  omission  to  pass  a  budget  law,  since  they  spring  from 
sources  independent  of  the  budget  grant.1 

VIII.  The  Auditing  of  Accounts.2 —  "The  checking  of  a 
State's  accounts,"  says  Laband,  "is  as  indispensable  a  re- 
quirement of  the  financial  administration,  as  is  the  fixing  of 
the  budget.  The  State  needs  an  organ,  independent  of  the 
administrative  authorities,  which  shall  review  their  work 
periodically,  in  order  to  ascertain  whether  they  are  collecting 
the  revenues  and  making  the  expenditures  according  to  the 
instructions  given  them,  and  in  such  ways  as  the  interests  of 
the  State  demand;  and,  further,  whether  they  are  admin- 
istering the  property  of  the  State  carefully  and  systematically. 
Moreover,  in  a  constitutional  State,  the  representatives  of 
the  people  cannot  take  that  effective  part  in  the  regulation  of 
the  financial  management  and  in  the  administration  of  the 
State,  and  their  share  in  the  fixing  of  the  budget  must  be 
illusory  and  without  result,  unless  the  whole  administration 
shall  be  subjected  to  a  comprehensive  checking  by  an  inde- 
pendent authority  and  made  accountable  to  the  popular 

1  An  exception  must  be  made  with  respect  to  the  "  proportional  assess- 
ments," which  are  to  be  levied  by  the  Chancellor  "  as  the  budget  may  re- 
quire," and  with  respect,  also,  to  the  income  from  the  sale  of  real  estate. 
Such  receipts  must  be  expended,  under  the  Law  of  25  May,  1873  (RCBI. 
p.  115),  §  n,  only  with  the  consent  of  the  Bundesrat  and  Reichstag. 

2  For  literature  on  the  subject,  see  Laband,  IV.  p.  515,  note. 


312  THE   GERMAN   EMPIRE 

representative  body,  in  carrying  on  the  business  of  the  State, 
for  the  actual  observance  of  those  norms  laid  down  under 
its  cooperation." 

Article  72  of  the  Constitution  of  the  North  German  Bund 
provided  that  a  "yearly  accounting  with  respect  to  the 
expenditure  of  all  receipts  of  the  Bund  should  be  made  by 
the  Praesidium  to  the  Bundesrat  and  to  the  Reichstag  for 
their  discharge."  The  Constitution  did  not  state  how  the 
accounts  of  the  administration  were  to  be  proven  or  how  the 
discharge  was  to  be  prepared.  This  did  not  seem  necessary, 
perhaps,  in  view  of  the  real  conditions  then  existent.  For, 
the  great  majority  of  the  boards  whose  accounts  were  to  be 
audited  were  made  up  of  Prussian  authorities  or  were  them- 
selves wholly  Prussian,  such,  for  instance,  as  the  marine 
and  military  boards,  the  embassies,  and  the  consulates. 
Since  the  king  of  Prussia  in  his  character  as  president  of 
the  Bund  was  also  head  of  the  financial  administration  of  the 
whole  federation,  it  was  perfectly  natural  that  the  Prussian 
arrangements  should  simply  be  extended  to  the  financial 
administration  of  the  Bund.  But  Prussia  had  not  as  yet 
carried  out  the  plain  intention  of  her  own  constitution  re- 
garding this  matter  of  auditing  the  general  accounts.  The 
constitution  of  Prussia,  Art.  104,  says  that  "a  special  law 
will  determine  the  organization  of  the  powers  of  the  Auditing 
Office."  Such  a  law  had  not  yet  been  passed  on  the  erection 
of  the  Bund.  Prussia,  however,  had  a  system  of  auditing 
her  own  accounts,  and,  by  the  Law  of  4  July,  I868,1  the  Bund 
handed  over  to  the  Prussian  authorities  the  auditing  of  the 
accounts  of  the  Federation  for  1867-69.  This  arrangement 
was  extended  from  year  to  year.  On  27  March,  1872,  Prussia 
passed  a  special  law  in  conformity  to  Art.  104  of  her  con- 
stitution,2 and  the  foundation  for  a  federal  law  was  thus  laid. 
1  RGBl.  p.  433.  *  Preuss.  Gesetzsammlung,  p.  278  ff. 


THE   CONSTITUTION  AND   IMPERIAL  FINANCE          313 

Several  attempts  were  made  by  the  Chancellor  to  pass  a 
bill  providing  for  the  erection  and  organization  of  a  Court 
of  Audits  (Rechnungshof),  but  it  was  impossible  to  secure 
an  agreement  between  the  Bundesrat  and  Reichstag  with 
respect  to  the  matter.1  It  is  only  since  1875  2  tnat  tne  provi- 
sions of  the  Prussian  Auditing  Office,  as  regulated  by  the 
Prussian  Law  of  27  March,  1872,  have  taken  the  place  of 
the  provisions  of  the  Law  of  4  July,  i868.3  "Up  to  the 
present  time,  therefore,  a  definite  fixing  of  the  legal  principles 
which  shall  govern  the  auditing  of  the  imperial  accounts, 
as  well  as  a  definite  organization  of  the  board  to  which  such 
an  examination  of  accounts  shall  be  intrusted,  is  wanting, 
and  should  the  extension  of  the  arrangements  hitherto  made 
be  not  continued,  in  any  year,  from  whatever  cause,  a  veri- 
table legislative  gap  would  ensue.  There  would  be  no  legal 
provision  by  which  the  Imperial  Chancellor  could  fulfil  the 
duty  laid  down  in  Art.  72  of  the  Constitution,  requiring  him 
annually  to  lay  before  the  Bundesrat  and  Reichstag  the  impe- 
rial accounts  for  their  discharge." 

The  Auditing  Court  of  the  Empire  is,  then,  simply  the 
Auditing  Office  of  the  Prussian  State,  acting,  under  an  annual 
imperial  law,  for  the  Empire,  in  that  capacity  in  which  it 

1  See  Hirth's  Annalen,  1874,  pp.  214  ff. ;  Zeiischrift  f.  d.  gesammt.  Staats- 
wis.  XXXIII  (1877),  pp.  23  ff. ;    also  Joel,  in  Hirth's  Annalen,  1895,  pp. 
81  ff. 

2  Law  of  ii  February,  1875  (RGBl.  p.  61). 

*  These  provisions  are  made  part  of  a  yearly  law  regulating  the  control  of 
the  imperial  budget  and  the  budget  of  Alsace-Lorraine  for  the  preceding 
year.  The  law  reads :  "  Die  Kontrolle  des  gesammten  Reichshaushalts, 
des  Landhaushalts  von  El.-Loth.  und  des  Haushaltes  der  Schutzgebeite 
fur  das  Rechnungsjahr  .  .  .  wird  von  der  Pr.  Oberrechnungskammer  unter 
der  Benennung  'Rechnungshof  d.  D.  Reiches'  nach  Massgabe  der  im 
Gesetze  von  n  Feb.,  1875  (RGBl.  p.  61),  betreffend  die  Kontrolle  des  Reichs- 
haushaltes  und  des  Landeshaushaltes  von  El.-Loth.,  fiir  das  Jahr  1874  ent- 
haltenden  Vorschriften  gefuhrt." 


314  THE  GERMAN   EMPIRE 

ordinarily  acts  for  Prussia.  Nevertheless,  when  acting  in  the 
capacity  of  Auditing  Court  for  the  Empire,  it  becomes  pos- 
sessed of  an  entirely  distinct  character  in  law.  Its  members 
may  be  increased,  should  it  seem  necessary,  by  new  members 
elected  by  the  Bundesrat  and  commissioned  by  the  Emperor. 
Its  sessions  are  entirely  separate  from  those  of  the  Auditing 
Office,  and  it  is  presided  over  by  a  special  director,  who  is 
officially  subordinated  to  the  president  of  the  Auditing  Office. 
The  Auditing  Court  exercises  its  control  over  the  finances  of 
the  Empire  in  accordance  with  those  regulations  which  are 
in  force  in  the  Prussian  Auditing  Office,  and  its  members 
enjoy  the  same  rights  and  are  bound  by  the  same  obligations, 
as  members  of  the  Auditing  Court,  as  attach,  under  the  Prus- 
sian laws,  to  the  members  of  the  Auditing  Office.1  The  Audit- 
ing Court  is  immediately  subordinate  to  the  Emperor.  With 
respect  to  the  Chancellor  and  the  other  administrative 
authorities,  it  occupies  a  position  of  absolute  independence. 
Its  members  enjoy  the  independent  position  of  members 
of  a  court.  The  Auditing  Court  is  unconditionally  respon- 
sible for  its  own  acts,  so  that,  so  far  as  its  work  is  concerned, 
the  responsibility  of  the  Imperial  Chancellor  is  excluded. 
Its  organization,  and  order  of  business,  as  well  as  the  relation 
of  the  director  to  the  president  of  the  Auditing  Office  and 
to 'the  members  of  the  court,  are  regulated  by  instructions 
issued  by  the  Imperial  Chancellor  with  the  consent  of  the 
Bundesrat.2  The  work  of  the  Auditing  Court  includes  the 
checking  of  the  following  accounts:  the  whole  budget  for 
the  Empire,  the  acquiring  and  disposal  of  imperial  property, 


1  Law  of  4  July,  1868,  §  3,  and  continued  in  force  by  all  subsequent 
legislation. 

1  Law  of  4  July,  1868  (RGBl.  p.  533),  §  5.  Such  instructions  were  issued 
on  28  May,  1869,  and  afterward  replaced  by  the  Instruction  of  5  March, 
1875  (Centralbl.  p.  157). 


THE  CONSTITUTION  AND   IMPERIAL  FINANCE         315 

the  administration  of  the  imperial  debt,  the  Invalid  Fund, 
the  Imperial  War  Treasure,  the  Imperial  Bank,  the  whole 
budget  of  Alsace-Lorraine  and  of  all  the  protectorates.  In 
short  the  whole  administration  of  the  Empire,  so  far  as  it  can 
be  ascertained  from  the  books  of  account,  is  subjected  to  the 
examination  and  critical  inspection  of  the  Auditing  Court. 
The  work  of  the  court  is  essentially  critical  rather  than 
judicial.  It  does  not  possess  the  authority  of  a  supreme 
administrative  board,  nor  have  its  judgments  the  force  of 
judicial  decisions.  Differences  of  opinion  which  may  arise 
between  the  Auditing  Court  and  the  Imperial  Chancellor, 
as  head  of  the  imperial  administration,  with  reference  to  a 
state  of  facts,  where  the  court  has  seen  fit  to  impose  a  censure, 
are,  as  a  rule,  decided  by  the  Bundesrat.  When,  however, 
the  censure  touches  an  order  with  respect  to  military  or  naval 
affairs,  the  matter  is  to  be  decided  by  a  cabinet  order  of  the 
Kaiser.  On  the  other  hand,  should  the  censure  be  passed 
upon  a  matter  in  the  regulation  of  which  the  Reichstag 
had  cooperated,  the  decision  of  that  body  is  to  be  had  as  to 
the  granting  or  refusing  of  a  discharge.1 

The  work  of  the  Auditing  Court  is  incident  to  the  fulfilment 
of  Art.  72  of  the  Imperial  Constitution,  which  requires  the 
Imperial  Chancellor  to  lay  before  the  Bundesrat  and  Reichstag, 
annually,  a  statement  of  the  disposition  of  all  the  receipts 
of  the  Empire,  for  the  discharge  of  those  bodies.  To  this 
end,  the  report  of  the  Auditing  Court,  together  with  such 
remarks  as  they  may  see  fit  to  append,  is  laid  before  the 
Bundesrat  and  Reichstag,  and  a  particular  discharge  is 
granted  by  each  of  these  bodies.  Neither  can  refuse  such 
discharge,  if  there  is  no  well-grounded  fault  to  be  found  with 
the  accounts,  "  since,  corresponding  to  the  duty  laid  upon 
every  administrator  of  another's  money,  to  render  an  account 
1  Laband,  IV.  pp.  524,  525. 


316  THE  GERMAN  EMPIRE 

of  the  same,  is  the  right  to  a  discharge  when  the  accounts  are 
found  to  be  in  order."  The  effect  of  a  discharge  is,  of  course, 
in  private  relations  that  of  a  quittance.  Constitutionally  it 
releases  the  Imperial  Chancellor  from  the  responsibility 
resting  upon  him  with  respect  to  the  administration  of  the 
finances.1 

IX.  The  Imperial  Debts?  —  In  discussing  the  indebtedness 
of  a  State,  a  distinction  is  to  be  drawn  between  those  obliga- 
tions which  arise  out  of  the  ordinary  administration  of  the 
government,  or  which  are  the  necessary  outgrowth  of  pre- 
vious legislation,  and  those  debts  which  are  created  by  specific 
loans  or  by  the  assumption  of  guarantees.  The  obligations 
of  the  first  sort,  which  may  be  termed,  with  the  German 
jurists,  administrative  debts,  arise  in  the  natural  operation 
of  the  government  and  require  no  special  authorization  for 
their  contraction.  Loans,  on  the  contrary,  or  finance  debts, 
to  still  follow  the  German  phraseology,  can  be  contracted 
only  by  reason  of  a  particular  law  authorizing  them,  since 
the  exploitation  of  the  State's  credit  lies  entirely  outside  the 
ordinary  expenditures  of  the  administration.8 

Article  72  of  the  Imperial  Constitution  declares  that  "in  all 
cases  of  extraordinary  need,  a  loan  may  be  contracted,  or  a 
guarantee  assumed,  by  the  Empire,  through  imperial  legis- 
lation." The  plain  purport  of  this  article,  as  drawn  from 
the  context,  is  to  grant  the  right  to  utilize  the  credit  of  the 

1  Laband,  IV.  p.  532.  He  adds,  "This  responsibility  is  certainly  at 
present  a  mere  political  principle,  no  developed  and  practically  applicable 
legal  institute ;  and  at  that  point  in  the  law  of  the  German  Constitution,  where 
the  very  corner-stone  of  the  whole  administrative  law  —  especially  of  the 
budget  law  —  should  stand,  there  is  to-day  a  gap  which  needs  to  be  filled." 

3  See  Laband,  IV.  pp.  364  ff. ;  Hirth's  Annalen,  1873,  pp.  435  ff. ;  Meyer, 
Verwaltungsr.  II.  pp.  404  ff. ;  Von  Heckel,  article  " Staatsschulden,"  in  Con- 
rad's Hand-iiu or terb.  VI.  p.  752,  and  the  literature  therein  cited  on  page  968. 

8  Laband,  IV.  p.  365. 


THE   CONSTITUTION   AND   IMPERIAL  FINANCE         317 

Empire  in  order  to  meet  any  unusual  demands,  should  the 
ordinary  receipts  of  the  Empire  prove  inadequate  for  the 
purpose.  The  credit  of  the  Empire  is  safeguarded  by 
insisting  thai  no  exploitation  of  that  credit  shall  be  made 
except  through  an  imperial  law. 

Loans  are  contracted  in  the  form  of  a  number  of  agree- 
ments made  with  the  creditors  of  the  Empire.  These  con- 
tracts may  assume  the  character  of  mere  loans,  with  an  obli- 
gation to  repay  the  capital  borrowed,  or  they  may  take  the 
form  of  the  purchase  of  annuities  with  an  obligation  to  pay 
only  an  annual  rent.  The  conditions  of  the  contracts  are 
fixed  partly  by  the  law  and  partly  by  the  Imperial  Chancellor 
at  the  time  the  loan  is  secured.  Such  terms,  when  fixed  by 
the  Chancellor,  are  regarded  as  an  integral  part  of  the  indi- 
vidual contracts.1  The  relation  between  the  Empire  and  its 
creditors,  arising  out  of  these  contracts,  is  a  relation  at  private 
law,  and  the  rights  and  obligations  springing  therefrom  may 
be  asserted  by  legal  proceedings. 

The  greater  part  of  the  debt  of  the  Empire  forms  what  is 
known  as  the  "funded"  or  "consolidated"  debt.2  It  in- 
cludes the  totality  of  those  debts  which  the  Empire  has 
assumed  for  a  long  period  of  time  in  order  to  obtain  means 
for  meeting  the  extraordinary  expenses.  These  obligations 
are  covered  by  imperial  bonds.  The  imperial  debts,  hitherto 
contracted,  belonging  to  the  bonded  debt,  have  altogether  the 
character  of  annuity  debts.  The  Empire  binds  itself  to  pay 
an  annual  interest,  but  does  not  undertake  to  pay  the  principal 
within  a  definite  period.  Moreover,  the  Empire  reserves  the 


1  Meyer,  Verwaltungsr.  II.  pp.  405,  406. 

2  The  principal  legislation  with  reference  to  loans  consists  of  the  Law  of 
9  November,  1867  (BGBl.  p.  157);  6  April,  1870  (BGBl.  p.  65);  Law  of  27 
Jan.,  1875  (RGBl.  p.  18).     To  these  must  be  added  the  Reichsschuldenord- 
nung  of  9  March,  1900  (RGBl.  p.  129),  found  also  in  Triepel,  p.  293. 


318  THE  GERMAN  EMPIRE 

right  to  repay  the  loan  upon  giving  due  notice,  the  term  of 
such  notice  to  be  fixed  by  law.1 

Where  the  matter  is  not  provided  for  in  the  law  authorizing 
the  loan,  the  Imperial  Chancellor  is  to  fix  the  rate  of  interest 
which  the  loan  shall  bear.2  Changes  in  the  rate,  or  the  con- 
version of  the  loan,  require  the  assent  of  the  legislative  organs, 
because  of  the  effect  such  conversion  may  have  on  the  budget.3 

The  floating  debt  of  the  Empire  consists  of  those  obliga- 
tions which  the  Empire  has  assumed  for  a  short  period  of 
time  in  order  to  strengthen  the  imperial  treasury  or  to  balance 
the  receipts  and  expenditures  for  a  single  fiscal  year.  This 
usually  takes  the  form  of  treasury  warrants  (Schatzan- 
weisungen),  issued  by  the  Chancellor,  on  the  authority  of  a 
legislative  act  embodied  in  the  budget  law.  These  treasury 
warrants  have  the  character  of  mere  loans,  not  of  annuities. 
They  are  usually  non-interest  bearing.4 

The  administration  of  the  imperial  debt  is  regulated  by 
the  Law  of  19  June,  i868,5  the  provisions  of  which,  originally 
applying  to  the  marine  loan  of  the  North  German  Bund, 
were  extended  to  all  later  loans  of  the  Empire,  by  subsequent 
legislation.  According  to  the  terms  of  the  Reichsschulden- 
ordnung  of  March  19,  1900,  §§9  ff.,  the  administration  of 
the  imperial  debt  is  regulated  as  follows :  until  some  further 
action,  the  administration  of  the  imperial  loans  is  carried 
on  by  the  chief  administrative  authorities  handling  the  State 
debt  of  Prussia.  In  their  function  as  an  organ  of  the  Empire 
this  body  is  called  the  Imperial  Debt  Administration.  The 

1  See  Law  of  6  April,  1870,  §§  3,  4,  and  Law  of  27  January,  1875,  §  2. 
These  laws  have  been  also  made  applicable  to  recent  loans. 

*  Reichsschuldenordnung  of  19  March,  1900,  §  2. 
8  Meyer,  Verwaltungsr.  II.  p.  406. 

4  The  paper  money  of  the  Empire  may  also  be  included  among  the  im- 
perial debts.  See  Meyer,  Verwaltungsr.  II.  pp.  478  ff. 

*  BGBl.  p.  339. 


THE  CONSTITUTION  AND  IMPERIAL  FINANCE         319 

conduct  of  it  is  placed  in  the  hands  of  the  Chancellor  so  far 
as  this  is  compatible  with  the  independence  of  the  adminis- 
tration. The  Imperial  Debt  Administration  is  uncondition- 
ally responsible  for  its  own  acts,  and  its  activity  is  regulated 
by  the  provisions  of  the  Prussian  Law  of  24  February,  I85O.1 
The  supervision  of  the  administration  of  the  imperial  debt 
is  placed  in  the  hands  of  the  "Imperial  Debt  Commission," 
made  up  of  six  members  of  the  Bundesrat,  viz.,  the  chair- 
man and  five  members  of  the  Committee  on  Accounts,  together 
with  six  members  of  the  Reichstag.2  The  president  of  the 
Prussian  Auditing  Office  is  also  a  member.  His  connection 
with  it  continues  until  the  Empire  shall  have  created  its  own 
Board  of  Accounts.  The  president  of  the  Auditing  Office 
acts  in  his  capacity  of  president  of  the  Imperial  Auditing 
Court,  and  is  to  be  specially  sworn.  The  supervisory  power 
of  the  Commission  extends  to  the  administration  of  the  impe- 
rial debt,  the  administration  of  the  Imperial  War  Treasure, 
the  management  of  the  Imperial  Invalid  Fund,  and  to  the 
issuance,  withdrawal,  and  cancellation  of  the  notes  of  the 
Imperial  Bank  and  of  the  treasury  warrants. 

Whatever  business  is  to  be  transacted  in  the  administra- 
tion of  the  finances  by  the  Imperial  Chancellor,  is  carried  on 
through  the  Imperial  Treasury  Office,  which  is  subordinate 
to  the  Chancellor.3  Further,  it  is  prescribed  in  all  the  laws 
authorizing  loans,  that  an  account  of  the  negotiation  of  the 
same  be  made  to  the  Reichstag  at  its  next  meeting.4 

1  Pr.  G.S.  p.  57.     Found  also  in  App.  I.,  Triepel.    The  administration  is 
responsible  only  to  the  Bundesrat  and  Reichstag. 

2  These  members  are  annually  elected  by  the  bodies  from  which  they 
come. 

3  Ordinance  of  14  July,  1879  (RGBl.  p.  196). 
*  Reichsschuldenordnung,  §  i. 


CHAPTER  XII 
THE  ARMED  FORCES  OF  THE  EMPIRE1 

IT  is  a  generally  accepted  principle  that  the  armed  forces  of  a 
State  should  constitute  a  unit,  no  matter  what  the  form  of  the 
State  may  be.  In  a  federal  no  less  than  in  a  unitary  State, 
in  a  democracy  no  less  than  in  an  absolute  monarchy,  the 
organization  of  the  army  and  navy  and  the  supreme  command 
over  the  armed  forces  should  fall  within  the  competence  of 
the  central  government.  This  is  not  a  principle  of  law,  but 

1  The  following  literature  may  be  cited:  Die  Militargesetze  des  Deutschen 
Reichesmit  Erlduterungen,  etc.,  2  Bde.,  Berlin,  1888;  Von  Helldorff,  Dienst- 
vorschriften  der  koniglichen  preussischen  Armee,  3  Aufl.,  n  Bde.,  Berlin, 
1873-1884;  Frohlich,  Die  Verwaltung  des  deutschen  Heeres,  4  Aufl.,  2  Bde., 
Berlin,  1875,  with  two  supplementary  parts,  1876-7;  Von  Briesen,  Das 
Reichskriegswesen  und  die  preussische  M ilitdrgesetzgebung,  Diisseldorf ,  1872; 
Von  Lobell,  Jahresberichte  ilber  die  Verdnderungen  und  Fortschritte  im 
Militarwesen,  Berlin,  1874  ff.  (see  particularly  Bd.  i,  pp.  i  ff.);  Thudichum, 
"  Die  Grundlagen  der  heutigen  deutschen  Kriegsverjassung,"  in  Von  Lobell's 
Jahresberichte,  Bd.  2,  pp.  87  ff. ;  also  the  discussion  by  the  same  author  in 
his  Verjassungsrecht  des  norddeutschen  Bundes,  Tubingen,  1870;  Seydel, 
"Das  Kriegswesen  des  Deutschen  Reiches,"  inHirth'sXnnafew,  1874,  pp.  1035 
8.;  1875,  pp.  5,)ff.,  1081  ff.,  1393  ff. ;  Brockhaus,  Das  deutsche  Heerund  die 
Contingente  der  Einzelstaaten,  Leipzig,  1888;  Giimbel,  in  Hirth's  Annalen  for 
1899,  pp.  131  ff. ;  Laband,  Staatsrecht  des  Deutschen  Reiches, Ed.  IV.  pp.  i  ff.; 
same  author  in  Archiv  fur  das  offentliche  Recht,  Bd.  III.  pp.  491  ff. ;  Meyer, 
Staatsrecht,  §§  195  ff.,  and  Verwaltung srecht,  II.  pp.  30  ff.  Schultze,  Staats- 
recht, II.  pp.  235  ff.;  Zorn,  Staatsrecht,  I.  189  ff.,  II.  §§  37  ff.;  Seydel, 
Komm.  pp.  310  ff. ;  Hanel,  Staatsrecht,  I.  472  ff. ;  Arndt,  Staatsrecht,  pp. 
446  ff. ;  Anschiitz,  "Staatsrecht,"  in  Holzendorff-Kohler,  Encyclopddie 
der  Rechtswissenschajt,  II.  pp.  619  ff. ;  Hue  de  Grais,  Handbuch  der  Ver- 
fassung  und  Verwaltung,  16  Aufl.,  Berlin,  1904;  Steidle,  Komm.  zum  Reichs- 
militargesetz,  Wiirzburg,  1898. 

320 


THE  ARMED   FORCES  OF  THE  EMPIRE  321 

of  expediency.  In  theory,  this  principle  is  specifically  recog- 
nized in  the  Imperial  Constitution.  Article  53  declares  that  the 
"  navy  of  the  Empire  is  an  united  one  under  the  supreme  com- 
mand of  the  Emperor."  Article  63  reads:  "The  entire  land 
force  of  the  Empire  shall  constitute  a  united  army,  which,  in 
war  and  in  peace,  shall  be  under  the  command  of  the  Em- 
peror." Article  53  states  a  fact.  Article  63  partakes  of  the  na- 
ture of  what  the  German  jurists  are  wont  to  call  a  "  legislativer 
Monolog."  Strictly  speaking,  the  German  army  is  not  a  unit. 
Indeed,  it  may  be  quite  properly  said  that  there  is,  as  yet,  no 
imperial  army,  but  simply  contingents  of  the  several  States.1 
With  respect  to  the  general  principle  of  unity,  the  army  and 
navy  do  not  stand  on  the  same  footing.  The  reason  for  this 
difference  is  not  to  be  sought  in  any  juristic  or  technical  con- 
sideration, but  in  the  historic  conditions  out  of  which  both 
these  branches  of  the  armed  might  of  the  Empire  have  de- 
veloped. When  Art.  53  of  the  Imperial  Constitution  declares 
that  the  navy  is  a  unitary  one,  it  not  only  creates  an  organic 
law,  but  records  a  condition  actually  existent.  The  navy 
has  never  been  other  than  unitary.  When  the  North  Ger- 
man Confederation  was  formed  in  1867,  no  State  entering  the 
Union,  save  Prussia,  possessed  a  navy.  When  she  became 
part  of  the  new  federal  State,  Prussia  took  her  navy  with  her 
into  the  Bund,  but  the  command  over  that  navy  remained  still 
in  the  hands  of  the  king  of  Prussia,  where  it  had  always  been. 
This  was  not  true  of  the  army.  Each  member  of  the  Bund, 
prior  to  the  organization  of  the  Union,  had  regarded  itself  as 
a  sovereign  State.  Each  had  its  own  army,  organized  and 

'See  Laband,  IV.  p.  5.  This  is  a  hotly  contested  point  in  German 
constitutional  law.  Laband  is  stoutly  opposed  by  Meyer,  Zorn,  Schultze, 
Brockhaus,  and  Bornhak.  Comp.  also  Seydel,  Comm.  pp.  310  ff.  (26.  edi- 
tion). See  also  Laband,  Archiv  /.  d.  off.  Recht,  III.  pp.  491  ff. ;  G  umbel,  in 
Hirth's  Annalen,  1899,  [pp.  131  ff.,  esp.  157  ff. ;  Auschiitz,  pp.  619  ff.  in 
Holzendorft-Kohler. 
V 


322  THE  GERMAN  EMPIRE 

equipped  under  its  own  laws.  When  they  entered  the  North 
German  Confederation,  these  States  brought  with  them 
their  armed  forces  and  contributed  them  as  contingents 
to  the  fighting  strength  of  the  Union.  That  the  same  prin- 
ciple of  solidarity  should  obtain  in  both  the  army  and  navy 
is  apparent.  It  is  equally  apparent  that,  so  far  as  the  Ger- 
man army  is  concerned,  this  principle  has  not  been  fully 
carried  out.  It  cannot  be  denied  that  there  is  a  practical 
unity  in  the  army,  but  it  is  a  different  kind  of  unity  from  that 
which  characterizes  the  organization  of  the  navy.  "  The  unity 
of  the  navy  is  an  internal,  indivisible  one,  set  forth  in  the  very 
idea  and  nature  of  it.  The  imperial  army,  on  the  contrary, 
is  a  collective  unity.  The  '  unity '  of  the  land  forces  of  the 
Empire  does  not  cancel  the  separate  existence  of  the  State 
contingents.  It  signifies  simply  the  bond  which  holds  these 
various  contingents  together." 

The  principle  of  unity  in  the  military  organization  of  the 
Empire  is  carried  out  in  three  ways:  (i)  by  placing  the  su- 
preme command,  both  in  war  and  peace,  in  the  hands  of  the 
Kaiser;  (2)  by  introducing  a  uniform  organization,  equip- 
ment, and  set  of  tactics  in  all  the  contingents;  and  (3)  by 
meeting  the  expenses  of  the  army  out  of  the  common  treasury. 
From  a  military  standpoint,  as  Laband  concedes,  the  different 
contingents  may  be  regarded  as  parts  of  a  wholly  unified  army, 
but  from  the  standpoint  of  constitutional  law,  which  is  the  only 
point  from  which  the  jurist  can  view  the  matter,  it  is  a  funda- 
mental fact  that  there  is  no  imperial  army ;  these  words  are 
simply  a  collective  symbol  under  which  the  contingents  of  the 
several  States  may  be  comprehended.1 

If  it  be  true  that  the  imperial  army  is  but  a  name  for  the 
combination  of  the  various  contingents,  what  is  the  relation 
of  the  Empire  to  these  contingents  and  what  rights  have  the 
1  Laband,  IV.  p.  5. 


THE  ARMED  FORCES  OF  THE  EMPIRE  323 

several  States  over  their  own  armies?  The  answer  grows 
out  of  the  nature  of  the  Empire  as  a  federal  State.  German 
jurists  are  generally  agreed  upon  two  points  with  respect  to 
the  nature  of  the  Empire :  first,  the  Empire  is  not  a  mere  in- 
ternational arrangement  based  on  contract,  but  a  true  State 
based  on  a  constitution;  second,  the  individual  States,  on 
entering  into  the  federal  relation  ceased  to  be  sovereign,  but 
did  not  cease  to  be  States.1  In  no  department  of  their  organi- 
zation was  sovereignty  more  completely  lost  than  in  military 
affairs.  Each  State  has  its  own  army,  to  be  sure,  but  that 
army  is  recruited,  organized,  equipped,  and  drilled,  not  in  con- 
formity to  rules  and  regulations  laid  down  by  the  military 
authorities  of  the  State,  but  the  laws  and  ordinances  of  the 
Empire.  The  matter  of  liability  to  military  service,  the  re- 
cruiting of  the  various  contingents,  the  qualifications  and 
duties  of  officers,  the  establishment  of  a  criminal  code  for 
the  army  and  the  code  of  procedure  in  military  trials,  the  main- 
tenance of  discipline,  the  whole  arrangement  of  the  military 
organization,  the  fitting  out  of  the  troops,  etc.,  —  all  fall  within 
the  competence  of  the  imperial  legislation.  The  States, 
indeed,  possess  military  supremacy  formally,  but  the  material 
content  and  extent  of  this  supremacy  are  determined  by  the 
Empire.2  The  rulers  of  the  several  States  are  the  heads  of 
the  various  contingents,  that  is,  the  officers  and  men  of  the 
various  contingents  stand  in  a  relation  of  immediate  service 
to  the  ruler  of  the  State  to  which  their  contingent  belongs. 
They  take  the  oath  of  allegiance  to  him  and  owe  him  their 
personal  loyalty.  Nevertheless,  they  are  all  under  the  supreme 

1  The  "State-rights"  theory,  for  which  Max  von  Seydel  fought  so  tena- 
ciously and  masterfully,  is  practically  dead  in  Germany.     A  recent  attempt 
to  galvanize  the  corpse  has  been  made  by  Von  Jagemann,  sometime  member 
of  the  Bundesrat  for  Baden.     See  his  book,  Vortrage  iiber  die  deutsche  Reichs- 
verfassung,  Heidelberg,  1904. 

2  Laband,  IV.  p.  7. 


324  THE  GERMAN  EMPIRE 

command  of  the  Emperor,  as  head  of  the  united  armed  forces 
of  the  Empire,  and,  in  taking  the  oath  of  allegiance  to  their 
own  ruler,  they  swear  obedience  to  the  Emperor  at  the  same 
time.  The  Emperor  has  the  right  of  inspection  at  any  and  all 
times,  and  he  may  order  the  remedying  of  any  defects  which 
such  inspection  may  discover.  Further,  in  the  administra- 
tion of  their  own  contingents,  the  States,  while  actually  con- 
ducting the  work  of  administration,  must  keep  within  the 
bounds  set  by  imperial  law,  the  command  of  the  Emperor, 
and  the  amount  assigned  to  them  out  of  the  general  budget. 
Any  balance  which  may  remain  after  the  expenses  of  the  mili- 
tary administration  of  any  State  are  paid,  does  not  fall  to  the 
State,  but  flows  into  the  imperial  treasury. 

It  will  be  seen  that  two  principles  are  at  work  in  the  military 
organization  and  administration  of  the  Empire,  the  two  prin- 
ciples which  are  always  asserting  themselves  and  seeking  ad- 
justment under  the  federal  form  of  government,  viz.  the  prin- 
ciple of  unitarianism,  or  centralization,  which  is  constantly 
aiming  to  gather  the  whole  power  of  the  State  into  the  hands 
of  the  Empire ;  and  the  federalistic  principle,  or  principle  of 
State  supremacy,  which  seeks  to  preserve  to  the  individual 
members  of  the  Empire  the  largest  measure  of  independence 
and  control  compatible  with  the  efficiency  of  the  whole. 
The  very  necessities  of  effective  military  organization  demand 
that  the  supreme  power  and  control  be  located  at  a  single  cen- 
tre and  that  all  the  members  shall  be  subordinate  to  this  cen- 
tral authority.  To  reconcile  this  demand,  which  is  vital  to 
any  successful  military  organization,  with  the  justifiable  de- 
sire on  the  part  of  the  States  and  their  rulers  to  retain  and 
assert  their  own  supremacy,  is  a  delicate  task  and  presents  the 
problem  which  the  Imperial  Constitution  attempts  to  solve. 

So  far  as  Prussia  is  concerned  there  is  no  problem.  The 
king  of  Prussia  is  the  Kaiser  of  Germany.  Commander- 


THE   ARMED   FORCES   OF  THE   EMPIRE  325 

in-chief  of  the  Prussian  contingent,  he  is  also  commander-in- 
chief  of  all  the  contingents  by  reason  of  the  authority  vested 
in  him  by  the  Jmperial  Constitution.  In  the  very  nature  of 
the  case,  therefore,  there  can  be  no  conflict  and  no  fine  ques- 
tion over  the  partition  of  power  between  king  and  Kaiser, 
between  State  and  Empire.  The  theory  is  dissolved  in  the 
condition  of  fact.  Or,  as  Laband  puts  it,  the  powers  which 
are  separated  quoad  jus  flow  together  again  quoad  exercitium.1 
The  position  of  Bavaria,  however,  under  the  terms  of  the 
"November  Treaty,"  mark  a  clear  deviation  from  the  theory 
of  the  Constitution.  To  Bavaria  are  conceded  certain  special 
privileges,  reserved  rights,  with  respect  to  the  command  and 
administration  of  her  contingent.  In  this  regard,  Bavaria 
enjoys  an  independence  beyond  that  contemplated  in  the 
theory  of  the  Constitution.  The  division  of  powers  between 
the  Empire  and  the  States  set  forth  in  that  document  suffers 
considerable  modification  in  favor  of  the  States.  So  far  as  the 
other  States  are  concerned,  leaving  Saxony  and  Wiirttemberg 
one  side  for  the  moment,  the  problem  of  reconciling  the  claims 
of  the  States  with  the  demands  of  military  organization  has  been 
solved  by  the  action  of  the  States  themselves.  By  a  series  of 
conventions  with  Prussia,  these  States  have  ceded  whatever 
powers  may  have  belonged  to  them  under  the  Constitution 
regarding  military  matters  to  the  king  of  Prussia,  and  their 
contingents  have  been  incorporated  into  the  Prussian  con- 
tingent. These  military  rights,  it  is  noted,  were  not  handed 
over  to  the  Kaiser,  but  to  the  king  of  Prussia.  The  troops 
of  these  several  States,  therefore,  did  not  become  troops  of  the 
Empire,  but  an  integral  part  of  the  Prussian  army.  In  actual 
practice,  it  is  only  in  Saxony  and  Wiirttemberg  that  the  theory 
of  the  partition  of  powers  laid  down  in  the  Constitution  finds 

1  The  same  is  true  in  Alsace-Lorraine,  where  the  Emperor  exercises 
the  supreme  power  of  the  State. 


326  THE  GERMAN  EMPIRE 

application.  Even  in  these  two  States,  this  application  has 
sustained  some  slight  modifications  through  military  conven- 
tions. 

Whatever  may  have  been  the  theory  underlying  the  Imperial 
Constitution,  so  far  as  the  actual  facts  are  concerned,  the  armed 
force  of  the  Empire  is  not  made  up  of  twenty-five  contingents, 
one  from  each  State  in  the  Empire,  but  of  four  contingents, 
those  of  Prussia,  Bavaria,  Wiirttemberg,  and  Saxony.1  The 
fundamental  principle  on  which  the  military  organization 
constitutionally  rests  may  be  summed  up  in  this  sentence  of 
Laband's,  "To  the  Empire  belongs  the  military  organization 
and  arrangement  of  the  army,  the  supreme  command  in  war 
and  peace,  the  fixing  of  the  requirements  as  to  recruits  and 
as  to  the  budget  of  expenditures;  to  the  States  is  left  the 
formal  supremacy  over  the  contingents  and  self-administra- 
tion." 

From  this  brief  sketch  of  the  general  principles  on  which  the 
military  organization  of  the  Empire  is  based,  we  may  proceed 
to  a  more  detailed  examination  of  the  question :  How  are  these 
principles  carried  out  in  the  actual  organization  and  admin- 
istration of  the  armed  forces  of  the  Empire  ? 

I.  The  Navy.  —  The  German  navy  is  an  imperial  institu- 
tion pure  and  simple.  Naval  "contingents"  do  not  exist, 
nor  could  they  well  exist  from  the  very  nature  of  things.  At 
the  erection  of  the  North  German  Confederation,  each  State 
possessed  an  army  of  its  own,  but  no  State,  save  Prussia, 
could  boast  of  a  marine  force.  The  Prussian  navy,  too,  was 
more  of  a  possibility  than  a  fact.  Such  as  it  was,  however, 
the  navy  of  Prussia  became  the  navy  of  the  Union,  but  the 
supreme  command  over  it  remained  in  the  hands  of  the  Prus- 
sian king.  From  the  very  beginning,  therefore,  the  naval 

1  For  the  historical  reasons  for  this  deviation  of  the  facts  from  the  theory 
of  the  Constitution,  see  the  brief,  dear  statement  in  Laband,  IV.  p.  10. 


THE  ARMED   FORCES  OF  THE   EMPIRE  327 

force  of  Germany  has  been  organized  on  a  Unitarian  prin- 
ciple. The  Constitution,  Art.  53,  recites  a  state  of  facts 
when  it  declares  that  "the  navy  of  the  Empire  is  a  unitary 
one,  under  the  supreme  command  of  the  Kaiser."  With  a 
logical  regard  for  this  state  of  facts,  Art.  53  further  provides 
that  the  organization  and  composition  of  the  navy,  as  well  as 
the  appointment  of  officers  and  naval  officials,  shall  fall  to 
the  Kaiser,  and  that  the  expenses  incident  upon  the  creation 
and  maintenance  of  the  navy  shall  be  borne  by  the  imperial 
treasury.  The  imperialistic  nature  of  the  navy  thus  comes 
into  bold  relief,  and  the  competence  of  the  Empire  over  against 
that  of  the  several  States  is  sharply  defined.  In  naval  mat- 
ters, the  powers  of  the  Empire  include  not  only  that  general 
right  of  legislation  and  supervision  conceded  to  it  by  Art.  4 
(14)  of  the  Constitution,  but  the  sum  total  of  sovereign  rights, 
legislative  and  administrative,  and  the  right  of  legislation, 
is  inclusive.1 

The  power  to  organize  and  control  does  not  of  necessity 
carry  with  it  the  power  to  create  and  maintain.  The  general 
authority  with  respect  to  naval  matters,  granted  by  the  Con- 
stitution to  the  Kaiser,  is  not  sufficient  of  itself  to  secure  the 
creation  and  perpetuation  of  a  complete  naval  system.  The 
building  and  equipment  of  fighting  ships  require  vast  sums  of 
money,  and  the  maintenance  of  a  sea-power  necessitates  a 
regular  source  of  income  devoted  to  that  purpose.  No  au- 
thority is  given  to  the  Kaiser,  under  the  Constitution,  either 
to  raise  or  to  expend  moneys.  The  Kaiser  may  command  the 
navy  when  it  is  created,  but  he  can  neither  create  a  navy  nor 
support  it  after  it  is  brought  into  being.  The  power  to  raise 
money  and  the  power  to  appropriate  it  to  public  ends  lie 
within  the  competence  of  the  legislative  bodies  of  the  Empire. 
In  the  making  of  laws,  however,  both  Kaiser  and  the  legisla- 

1  Anschutz,  op.  cit.  p.  620. 


328  THE  GERMAN   EMPIRE 

tive  branch  of  the  government  take  part.  By  making  the 
organization  of  the  navy  a  matter  of  law,  an  equilibrium  is 
secured  between  the  two  factors  essential  to  the  development 
and  maintenance  of  an  efficient  naval  system;  between  the 
Kaiser,  in  whose  hands  the  Constitution  places  the  control 
and  composition  of  the  navy,  and  the  Bundesrat  and  Reichs- 
tag, without  whose  consent  a  budget  were  impossible.  The 
determination  of  the  number  and  kind  of  ships,  the  fixing  of 
the  official  roster,  and  the  number  of  men  in  the  naval  service 
affect  materially  the  determination  of  the  budget.  On  the 
other  hand,  the  determination  of  the  budget  affects  materially 
the  exercise  of  the  authority  in  naval  matters  vested  in  the 
Kaiser  by  the  Constitution. 

It  was  not  until  the  law  of  10  April,  1898,*  that  adequate 
legislation  was  had  on  the  organization  of  the  navy.  This 
law  specified  the  number  and  class  of  ships,  aside  from 
torpedo  boats,  school  ships,  special  ships,  and  gunboats, 
provided  for  the  construction  of  vessels  together  with  the  re- 
quired budget,  regulated  the  matter  of  commissions  and  pro- 
vided for  officers  and  crews.  In  view  of  certain  political  and 
commercial  conditions,  this  law  was  soon  regarded  as  insuffi- 
cient, and  it  was  repealed  by  the  law  of  14  June,  1900,  which 
provides  for  a  larger  sea  force,  and  appropriates  the  funds 
necessary  for  its  creation.2 

The  same  general  rules  that  prevail  respecting  the  liability 
of  German  subjects  to  service  in  the  army  apply  also  to  ser- 
vice in  the  navy.  The  entire  seafaring  population  of  the 

1  RGBl.  p.  165 ;  Triepel,  p.  274.  Prior  to  this  date  the  "  plans  for  the  creation 
of  a  fleet,"  on  which  the  budget  estimates  were  made,  had  not  force  of  law, 
and  the  provisions  for  the  naval  organization  were  contained  in  the  "Organi- 
satorischen  Bestimmungen  fur  die  kaiserliche  Marine,"  Berlin,  1888,  granted 
by  imperial  decree  of  14  June,  1888,  and  afterward  much  enlarged  and 
amended.  Laband,  IV.  p.  119,  note  i. 

1  RGBl.  p.  255;  Triepel,  p.  311. 


THE   ARMED   FORCES   OF  THE   EMPIRE  329 

Empire,  including  machinists  and  ship  laborers,  is  liable  for 
naval  service.  Those  who  are  liable  to  service  in  the  navy 
are  exempt  from  liability  in  the  army.1  Further,  the  obli- 
gation to  serve  in  the  land  forces  of  a  State  is  fulfilled  by 
service  in  the  navy.  Service  with  the  fleet  corresponds  to  ser- 
vice in  the  active  army,  while  service  in  the  naval  reserves  is 
equivalent  to  service  in  the  land  defence. 

The  Kaiser  is  supreme  commander  of  the  navy  in  law  as 
well  as  in  fact.2  An  " Admirals'  Staff  of  the  Navy"  (Ad- 
miralsstab  der  Marine),  with  a  staff  commander  at  its  head, 
has  its  seat  in  Berlin,  and  is  immediately  subordinate  to  the 
Kaiser,  as  are  also  the  commanding  officers  of  the  naval  sta- 
tions, the  commanding  officers  of  the  squadrons,  and  the  In- 
spector of  Naval  Instruction.  The  administration  of  naval 
affairs  is  entirely  distinct  from  what  one  might  call  the 
"hierarchy  of  command"  in  the  navy  itself.3  This  admin- 
istration is  carried  on  under  the  control  of  the  Imperial  Naval 
Office  (Reichsmarineamf) ,  at  the  head  of  which  is  a  Secretary 
of  State.  The  office  is  under  the  immediate  control  of  the 
Imperial  Chancellor,  who  is  responsible  for  its  acts.  All 
naval  officers  and  naval  officials  are  appointed  by  the  Kaiser. 
Officers  and  officials,  as  well  as  the  men  in  naval  service, 
take  the  oath  of  allegiance  to  the  Kaiser,4  not,  as  in  the  army, 

1  RVerf.  Art.  53,  Cl.  4. 

2  Ibid.  53,  Cl.  i:  "unter  den  oberbefehl  des  Kaisers."     By  imperial  de- 
cree of  30  March,  1889  (RGBl.  p.  47)  the  Kaiser  announced  that  the  "chief 
command  of  the  navy  shall  be  distinct  from  the  administration  of  the  navy, 
and  shall  be  carried  on  under  my  orders  by  the  commanding  admiral  ap- 
pointed by  me.     The  duties  and  rights  of  the  commanding  admiral  shall 
correspond  to  those  of  a  commanding  general  in  the  army."     This  arrange- 
ment was  set  aside  by  the  Cabinet  Order  of  14  March,  1899  (M '  arineverord- 
nungsblatt,  p.  37),  in  which  the  Kaiser  assumed  the  direct  command  himself. 

3  See  Imperial  Decree  of  30  March,  1889,  §§  i  and  2.     Also  Decree  of 
17  March,  1893  (Mariiieverordnungsblatt,  p.  37). 

*  RVerf.  53. 


33O  THE  GERMAN  EMPIRE 

an  oath  of  obedience  merely  incorporated  in  the  primary  oath 
of  allegiance  to  the  ruler  of  the  State  to  which  the  individual 
belongs. 

Naval  service,  therefore,  is  imperial  service.  No  sym- 
bols indicating  the  supremacy  of  the  particular  States  are 
recognized  there.  No  ship  floats  any  but  the  imperial  flag. 
The  standard  of  a  State  has  no  place  at  the  masthead.  All 
the  apparatus  of  the  navy,  the  fleet,  the  naval  harbors,  the 
docks  and  yards,  etc.,  belong  to  the  Empire.  The  naval 
fiscus  is  an  imperial  fiscus.  The  naval  budget  is  part  of  the 
imperial  budget.  It  is  fixed  and  administered  only  by 
organs  of  the  Empire.  In  the  sphere  of  naval  activity  the 
individual  States  have  no  share,  nor  has  the  individual  State 
a  right  to  a  sea  force  of  its  own.  On  the  sea  the  armed  force 
of  the  Empire  is  that  of  a  unitary  State.1 

II.  The  Army.  —  When  the  twenty-two  States  of  North 
Germany  were  united  into  the  North  German  Confederation, 
Prussia  contained  80  per  cent  of  the  total  population  and  85 
per  cent  of  the  total  area.2  This  preponderance  of  Prussia 
is  a  fact  which  must  never  be  lost  sight  of  in  considering  the 
development  of  the  German  Empire.  It  serves  to  explain 
arrangements  which  might  seem  unjust  in  a  federation  of 
States  more  nearly  equal  in  political  and  economic  signifi- 
cance. It  makes  clear  certain  seeming  peculiarities  in  the 
military  organization  and  administration  of  the  Empire. 
Each  State,  on  its  entry  into  the  North  German  Confedera- 
tion, had  an  army  of  its  own  controlled  by  its  own  military 
laws.  In  comparison  with  the  strength  and  the  perfection 
in  organization  and  equipment  of  the  Prussian  army,  these 

1  Anschiitz,  op.  cit.  620. 

2  The  total  population  was,  in  round  numbers,  30,000,000.      Of  this 
number  Prussia  contained  24,000,000  and  Saxony  2,000,000,  leaving  the 
remaining  4,000,000  to  be  distributed  between  20  States  and  free  cities. 


THE  ARMED   FORCES  OF  THE  EMPIRE  331 

diminutive  armies  of  the  remaining  States  were  of  minor 
consideration,  so  far  as  fighting  power  is  concerned. 

Attention  has  been  already  called  to  the  general  principle 
that  the  armed  force  of  a  State,  no  matter  what  the  form  of 
that  State  may  be,  must  be  under  the  supreme  control  of  the 
central  government.  Here  the  federal  principle  finds  the 
least  play.  This  fact  was  recognized  in  the  Imperial  Consti- 
tution when,  in  Art.  4  (14),  legislation  with  respect  to  military 
matters  was  placed  within  the  competence  of  the  Empire. 
Prussia,  however,  could  scarcely  be  expected  willingly  to 
expose  her  military  organization  and  the  system  of  legislation 
which  had  grown  up  touching  military  affairs  to  the  varying 
moods  of  a  legislative  body,  and  put  herself  in  a  position  where 
her  splendid  military  arrangements  could  be  changed  against 
her  will  by  a  majority  vote  in  the  Bundesrat  and  Reichstag. 
Prussia's  military  prestige  demanded,  not  only  consideration, 
but  conservation.  To  this  end  Art.  5,  Cl.  2,  gave  to  the 
Praesidium  —  the  king  of  Prussia  —  a  veto  on  all  proposed 
legislation  which  effected  a  change  in  the  existing  order. 

"The  land  forces  of  the  Union  shall  constitute  a  uniform 
(einheitliclie)  army,  which  in  war  and  peace  shall  be  under 
the  command  of  the  king  of  Prussia."  *  This  uniformity 
must  naturally  be  gained  by  means  of  legislation.  The  fram- 
ers'of  the  Constitution  of  the  North  German  Confederation 
recognized  two  facts :  that  the  particularistic  military  arrange- 
ments of  the  individual  States  could  not  be  continued  if  the 
federal  army  were  to  be  made  a  complete  unit,  and  that  some 
provision  must  be  made  for  guaranteeing  this  desired  uniform- 
ity until  such  time  as  federal  legislation  could  be  had.  It 
was  perfectly  natural  that  a  provision  of  this  kind  be  made  in 
the  Constitution.  It  was  just  as  natural  that  the  Constitu- 
tion, in  providing  for  the  emergency,  should  turn  to  the 

1  Bundesverjassung,  Art.  63,  Cl.  i. 


332  THE   GERMAN   EMPIRE 

Prussian  army  as  a  model.  That  army  had  recently  proven 
itself  in  a  brilliant  campaign.  For  an  effective  military  organ- 
ization no  search  need  be  made  beyond  the  borders  of  Prussia. 
What  more  natural  and  more  logical  than  the  extension  of 
the  military  law  and  military  system  of  Prussia  to  the  whole 
federal  military  organization,  especially  in  view  of  the  fact 
that  the  Prussian  army  itself  constituted  the  far  larger  part 
of  the  whole  fighting  force  of  the  Union?  This  is  precisely 
what  was  done.  Article  61  of  the  Constitution  of  the  Union 
declares  that  "after  the  promulgation  of  this  Constitution, 
the  entire  military  legislation  of  Prussia,  not  only  the  laws, 
but  also  the  regulations,  instructions,  and  rescripts  issued 
with  reference  to  the  execution,  explanation,  and  extension 
of  the  same,  shall  be  immediately  introduced  into  the  whole 
territory  of  the  Union."  1  Upon  the  erection  of  the  Empire 
and  the  revision  of  the  Constitution  made  necessary  thereby, 
this  Art.  6 1  was  changed  merely  by  substituting  the  word  "  Em- 
pire" in  place  of  the  words  "territory  of  the  Union."  The 
extension  of  the  military  legislation  of  Prussia  and  of  the 
Union  to  the  new  States  from  the  South  on  their  entry  into 
the  Empire  took  place  through  certain  military  conventions : 
the  convention  with  Hesse,  for  that  part  of  her  territory  lying 
south  of  the  Main,  7  April,  1867,  Art.  2 ;  the  Treaties  of 
Versailles,  15  November,  1870;  and  of  Berlin,  25  November, 
1870,  with  Baden  and  Wurttemberg.2 
The  position  of  Bavaria  differs  from  that  of  the  other 

1  The  Military  Church  Rules  are  excluded. 

*  These  treaties  are  found  in  BCBl.  p.  650  ff.,  also  in  Triepel,  pp.  82,  99. 
See  also  certain  modifications  in  favor  of  Wurttemberg  in  military  convention 
between  the  Union  and  Wurttemberg,  dated  Versailles,  21  November,  1870, 
and  Berlin,  25  November,  1870  (BGBl.  p.  658),  Triepel,  102  ff.  The  intro- 
duction of  the  Prussian  military  law  and  the  imperial  law  touching  military 
matters  into  Alsace-Lorraine  took  place  under  the  Law  of  23  June,  1872 
(Gesetzblatt  fur  El.-Loth.  p.  83). 


THE  ARMED   FORCES  OF  THE  EMPIRE  333 

States  which  entered  the  Union  under  the  treaties  of  1870. 
Bavaria  enjoys  certain  special  privileges  on  the  basis  of 
a  rather  long  and  explicit  treaty  made  on  23d  November, 
1870.*  By  the  express  terms  of  this  Agreement,  Art.  61  of  the 
Imperial  Constitution  does  not  apply  to  Bavaria,  and  the 
Prussian  military  legislation  is  not  introduced  into  Bavarian 
territory.  Bavaria  retains  the  legislation  and  regulations 
respecting  military  affairs  which  were  in  force  at  the  time  of 
her  entrance  into  the  Empire.  The  general  obligation  to 
perform  military  service  which  is  imposed  by  the  Constitu- 
tion upon  every  German  subject 2  rests,  however,  upon  every 
Bavarian  subject  by  express  stipulation  in  the  Treaty  of  23 
November,  iSyo.3  Further,  the  competence  of  Bavaria  in 
military  legislation  suffers  no  restriction  whatever  in  the 
treaty,  but  is  full  and  complete.  But  while  the  Prussian 
military  legislation  does  not  extend  to  Bavaria  under  Art.  61 
of  the  Imperial  Constitution,  all  imperial  legislation  with 
respect  to  the  army  and  navy  does  so  extend  under  Art.  4  (14). 
That  is  to  say,  all  legislation  of  the  Union  prior  to  the  entry 
of  Bavaria  extends  to  that  State  only  with  her  consent;  all 
legislation  subsequent  to  that  time  extends  ex  proprio  vigore 
to  Bavaria  as  well  as  to  the  other  States  of  the  Empire.4 

It  should  be  remarked,  perhaps,  that  Art.  61,  Cl.  i,  of  the 
Imperial  Constitution  does  not  enlarge  the  scope  of  Prussian 
legislative  competence  in  military  matters  by  giving  Prussia 

1  See  Treaty  of  23  November,  1870  (BGBl.  1871,  p.  5,  also  Triepel,  89 
ff.),IH.  §5- 

z  RVerj.  Art.  57,  59. 

3  See  Treaty,  III.  §  5. 

4  Juristically,  therefore,  the  legislation  of  the  Empire  is  uniform  only  so 
far  as  those  laws  are  concerned  which  have  been  passed  since  the  erection 
of  the  Empire.     But  while  it  is  true  that  the  Empire  is  divided  theoretically 
into  two  spheres,  the  one  governed  by  Prussian  military  law  and  the  other 
by  Bavarian  law,  yet  in  fact  there  is  little  variation,  since  the  enactments  of 
Bavaria  practically  conform  to  those  of  Prussia.     See  Laband,  IV.  p.  13. 


334  THE  GERMAN  EMPIRE 

the  right  to  legislate  directly  for  the  whole  Empire.  The 
Prussian  military  law  was  introduced  into  the  several  States 
in  accordance  with  the  provision  of  the  Imperial  Constitution, 
not  as  Prussian  law,  but  as  the  law  of  the  respective  States, 
i.e.,  as  an  identical  law  of  the  several  States.  It  differed 
from  ordinary  State  legislation,  however,  in  this  respect:  it 
could  not  be  amended  by  the  legislative  bodies  of  the  State.  It 
had  the  force  of  imperial  legislation,  and  denied  to  the  several 
States  the  power  to  legislate  in  any  manner  in  the  field  covered 
by  the  laws  and  regulations  of  Prussia.  In  other  words,  there 
was  developed  here  an  imperial  legal  unity  in  military  matters, 
a  provisory  unity  which  the  second  clause  of  Art.  61  designed 
to  have  replaced  by  a  definite  and  permanent  unity  through 
the  codification  of  the  military  law  of  the  Empire.  This 
codification  has  not  been  effected  by  the  enactment  of  a  com- 
prehensive imperial  law,  such  as  this  clause  intended,  but 
piecemeal,  by  the  enactment  of  a  series  of  laws  beginning 
with  the  Law  of  Military  Service  of  9  November,  1867,  and 
extending  to  the  Law  of  25  November,  1899.* 

Military  Ordinances.  —  Military  affairs  may  be  regulated 
in  three  different  ways :  by  formal  law,  by  ordinance,  and  by 
express  command.  The  distinction  between  law  and  ordi- 
nance need  not  here  detain  us.  A  command  is  an  order 
issued  directly  by  a  superior  officer  to  his  subordinate,  and 
differs  from  a  law  or  an  ordinance  —  which  are  also  "orders" 
—  in  that  it  requires  for  its  validity  the  counter-signature  of 
no  minister  who  shall  assume  the  responsibility  therefor. 

Art.  4  (14)  declares  that  military  affairs  fall  within  the 
legislative  competence  of  the  Empire.  No  limitation  is  laid 
upon  this  competence,  either  with  respect  to  the  army  or 
navy,  nor  is  the  field  divided  in  such  wise  that  the  sphere  of 
law  is  distinguished  from  that  of  ordinance.  Art.  61,  Cl.  2, 
1  Anschutz,  op.  cit.  62. 


THE  ARMED   FORCES  OF  THE  EMPIRE  335 

speaks  of  a  comprehensive  military  law  for  the  Empire,  which 
law  shall  be  laid  before  the  Bundesrat  and  the  Reichstag. 
This  clause,  however,  covers  the  field  of  legislative  compe- 
tence only  so  far  as  the  enactment  of  a  formal  law  is  concerned. 
It  neither  includes  nor  excludes  the  sphere  of  ordinance. 
Further,  Cl.  i  of  the  same  article,  which  extends  the  Prus- 
sian military  legislation  to  the  whole  Empire,  speaks  expressly, 
not  only  of  laws,  but  also  of  the  various  ordinances,  regula- 
tions, etc.,  and  declares  that  the  ordinances  respecting  ec- 
clesiastical affairs  in  the  army  shall  not  be  included.  Article 
61,  Cl.  i,  does  not  raise  all  these  Prussian  laws,  ordinances,  in- 
structions, etc.,  to  the  same  level  of  imperial  laws.  It  merely 
extends  their  operation  in  the  character  they  already  possess, 
whether  law  or  ordinance  or  other,  to  the  whole  Empire.  It 
has  no  direct  bearing  on  the  question  as  to  what  matters  shall 
be  regulated  by  law  and  what  by  ordinance. 

In  default  of  an  explicit  definition  of  the  matter  in  the  Im- 
perial Constitution,  the  general  principles  of  constitutional 
law  must  be  applied.  Laband  1  lays  down  two  legal  dogmas 
with  respect  to  determining  the  boundaries  of  the  right  to 
issue  ordinances :  (i)  An  administrative  ordinance  is  opera- 
tive only  within  the  sphere  of  administration  and  can  regulate, 
therefore,  only  the  interna  of  the  military  and  naval  admin- 
istration. As  soon  as  a  provision  lays  upon  the  subjects  in 
general,  or  upon  certain  classes  of  them,  or  upon  the  Com- 
munes, Corporations,  railroad  contractors,  etc.,  obligations 
respecting  the  armed  forces,  or  interferes  in  judicial  matters, 
the  taxes,  or  the  communal  organization,  and  so  on,  then  so 
far  as  its  material  content  is  concerned,  this  provision  ceases 
to  be  a  res  interna  of  the  military  or  naval  administration. 
As  a  rule'  such  regulation  should  take  the  form  of  law. 
(2)  Administrative  regulations  may  be  issued  in  the  form  of 
1  Laband,  IV.  pp.  16,  17. 


336  THE  GERMAN  EMPIRE 

law  and  thereby  receive  the  force  of  law,  i.e.,  they  cannot  be 
repealed  or  amended  by  a  mere  ordinance  but  only  through 
formal  legislation.  In  so  far,  therefore,  as  an  imperial  law 
contains  regulations  of  matters  ordinarily  falling  within  the 
sphere  of  ordinance,  the  issuance  of  ordinances  in  conflict 
therewith  is  not  permissible,  even  though  the  subject-matter 
concern  only  the  internal  administration  of  the  army  or  navy. 

Who  may  issue  military  ordinances  ?  1  That  the  Bundesrat, 
in  certain  circumstances,  may  issue  military  ordinances  is 
beyond  dispute.  The  provisions  of  Art.  7,  Cl.  2,  which  grant 
to  the  Bundesrat  the  power  to  issue  such  general  administra- 
tive regulations  as  may  be  required  in  carrying  out  an  im- 
perial law,  suffers  no  restriction  as  to  the  subject-matter  of 
such  regulations.  They  may  apply  to  military  laws  as  well 
as  to  others.  The  only  limit  on  the  power  of  the  Bundesrat 
to  pass  such  ordinances  is  laid  down  in  Cl.  2  itself,  in  the 
words,  "so  far  as  is  not  otherwise  determined  by  imperial 
law."  The  authority  vested  in  the  Bundesrat  by  Art.  7,  Cl. 
2,  is  confined  to  the  issuance  of  ordinances  required  to  carry 
out  an  imperial  law.  It  does  not  cover  that  vast  field  of  mili- 
tary and  naval  affairs  which  is  not  regulated  by  imperial  law. 
Here  the  right  of  the  Bundesrat  to  interfere  by  way  of  ordi- 
nance for  any  purpose  whatever  is  excluded. 

To  whom,  then,  does  the  ordinance  power  belong  in  such 
matters?  So  far  as  the  navy  is  concerned,  there  is  little 
difficulty  in  answering  the  question.  From  the  very  nature 
of  the  naval  organization  under  the  Imperial  Constitution, 
such  ordinances  issue  from  the  Kaiser  or  from  the  imperial 
authorities.2  When,  however,  the  power  to  issue  ordinances 

1  See  the  excellent  article  by  Hecker  in  Stengel's  Worterb.  I.  p.  64. 

1  This  may  be  inferred  from  Art.  53,  Cl.  i.  See  also  Laband,  IV.  p.  18. 
On  this  point  there  is  general  agreement  among  the  German  writers  on  con- 
stitutional law. 


THE  ARMED   FORCES  OF  THE  EMPIRE  337 

for  the  army  is  discussed,  a  difference  of  opinion  is  im- 
mediately developed  among  the  German  jurists.  This  dif- 
ference of  opinion  is  due  to  the  conflicting  theories  concern- 
ing the  nature  of  the  army.  For  the  answer  to  the  question 
as  to  whether  the  imperial  army  is  unitary  or  simply  uniform, 
in  other  words,  whether  there  is  an  imperial  army  in  fact 
or  simply  a  combination  of  contingents,  affects  radically 
the  answer  to  the  question  as  to  the  location  of  the  ordinance 
power.  If  the  army  is  a  unitary  one  rather  than  a  merely 
uniform  one,  then  the  Emperor  is  empowered  to  issue  ordi- 
nances for  the  army  as  well  as  for  the  navy.  That  he  is,  in 
any  case,  empowered  to  issue  commands  and  orders  in  his 
capacity  of  commander-in-chief  is,  of  course,  understood. 
If,  on  the  other  hand,  the  army  is  not  unitary,  but  uniform, 
not  a  unit,  but  made  up  of  contingents, — a  "Kontingentsheer," 
—  then  the  power  to  issue  ordinances  for  it  does  not  fall 
logically  to  the  Emperor  as  is  the  case  with  the  navy.  It 
must  lie  elsewhere.  This  is  the  position  of  Laband,  also 
of  Anschiitz.  The  argument  which  Laband  advances  in 
support  of  his  contention  is  here  reproduced. 

1.  When  a  matter  is  regulated  by  imperial  law,  the  right 
of  the  Bundesrat  to  issue  ordinances  necessary  to  the  carrying 
out  of  such  law,  as  recognized  in  Art.  7,  Cl.  2,  of  the  Imperial 
Constitution,  rinds  application  so  far  as  the  law  itself  makes 
no  provision  otherwise.1 

2.  The  exercise   of   the  Bundesrat' s  power  to  issue  ordi- 
nances under  Art.  7,  Cl.  2,  of   the    Constitution   is   made 

1  In  actual  practice  the  law  does  provide  otherwise,  assigning  the  power 
to  issue  the  required  ordinances  to  the  Kaiser,  and  for  Bavaria,  to  the  king  of 
Bavaria.  For  list  of  such  provisions  see  Laband,  IV.  p.  18,  note  2.  These 
ordinances  are  issued  by  the  Kaiser  as  head  of  the  Empire,  not  as  king  of 
Prussia,  and  are  countersigned  by  the  Imperial  Chancellor  and  published 
in  the  proper  imperial  "Blatt."  By  reason  of  this  publication  they  acquire 
binding  force  in  all  the  Empire  except  Bavaria.  Laband,  IV.  pp.  18, 19,  note l. 
z 


338  THE  GERMAN  EMPIRE 

contingent  upon  the  enactment  of  an  imperial  law,  to  the  exe- 
cution of  which  such  ordinances  are  necessary.  When  the 
North  German  Confederation  was  formed,  no  such  legisla- 
tion existed  on  military  affairs,  save  what  was  contained  in 
the  Constitution  itself.  In  view  of  the  demand  for  a  uniform 
military  organization,  it  was  impossible  to  continue  in  force 
the  multiform  military  legislation  of  the  several  States  or  to 
permit  the  issuance  of  military  ordinances  at  the  discretion 
of  the  different  rulers.  It  seemed  to  be  the  best  expedient, 
though  merely  a  provisory  arrangement,  to  extend  the  exist- 
ing Prussian  military  legislation  over  the  whole  federal  ter- 
ritory, until  such  time  as  the  matter  could  be  taken  up  and 
covered  by  a  comprehensive  imperial  law.  For  this  reason 
Art.  61,  Cl.  i,  provides  that  "after  the  promulgation  of  this 
Constitution,  the  entire  Prussian  military  legislation,  not  only 
the  laws  themselves,  but  also  the  regulations,  instructions,  and 
rescripts  issued  for  the  execution,  explanation,  or  extension  of 
the  same,  shall  be  introduced  without  delay  in  the  whole 
Empire."1  The  phrase  "Prussian  military  legislation" 
was  intended  to  be  comprehensive,  including  both  formal 
military  laws  and  military  ordinances.2  The  Constitution, 
however,  failed  to  state  how  this  legislation  should  be  made 
operative  in  the  whole  Empire,  i.e.,  by  what  method  the 
legislation  of  Prussia  on  military  matters  should  become 
effective  for  the  rest  of  the  imperial  territory.  Three  theories 
have  been  advanced.  According  to  one  view,  Art.  61,  Cl.  i, 
is  a  command  directed  to  the  several  States.  This  is  Hanel's 
position.3  A  second  view,  held  originally  by  Seydel 4  and 

1  With  the  entire  exclusion  of  Bavaria  and  the  partial  exclusion  of  Wiirt- 
temberg. 

1  See  speech  of  Von  Roon  in  Reichstag  debate  on  draft  of  Constitution, 
Sten.  Ber.  p.  581.  Also  in  Bezold,  II.  pp.  384,  385. 

8  Studien,  II.  p.  70. 

4  Comm.  rst  edition,  p.  233.  Hirth's  Annalen,  1875,  p.  1418.  Cf. 
Comm.,  ad  edition,  p.  328. 


THE  ARMED   FORCES  OF  THE  EMPIRE  339 

supported  by  Georg  Meyer,1  maintains  that  the  command  is 
issued  to  the  Bundespraesidium,  while  according  to  the  third 
view,  that  of  Arndt,2  the  command  was  laid  upon  both,  i.e., 
it  is  a  matter  of  indifference  whether  the  Prussian  legislation 
on  military  matters  is  introduced  by  the  several  States  or  by 
the  king  of  Prussia  as  Bundespraesidium,  the  important 
thing  being  its  introduction.  The  position  of  Laband  is 
identical  with  that  of  Hanel.  If  it  had  been  the  intention, 
he  argues,  to  introduce  the  Prussian  military  legislation  into 
the  whole  Empire  by  imperial  action,  the  Constitution  would 
have  made  an  immediate  declaration  to  that  effect,  and  would 
not  have  limited  itself  to  the  mere  order  that  this  legislation 
"is  to  be  introduced."3  Had  the  Constitution  intended  to 
leave  the  introduction  of  this  legislation  to  the  discretion 
of  the  Bundespraesidium,  there  would  have  been  no  sense  in 
prescribing  its  introduction  without  delay  and,  at  the  same 
time,  specifying  in  detail  what  was  to  be  introduced.  Nor 
is  it  easy  to  see  why  the  competence  of  the  Emperor  was  not 
expressly  mentioned  in  Art.  61,  Cl.  i,  if  it  was  the  intention 
to  recognize  it.  On  the  other  hand,  if  the  introduction  of 
the  Prussian  military  legislation  was  laid  as  a  duty  upon  the 
several  States,  then  the  wording  of  Art.  61,  Cl.  i,  is  correct 
and  it  makes  good  sense  as  well.4 

1  In  Hirth's  Annalen,  1880,  p.  340. 

2  Verordnungsrecht,  pp.  126  ff.,  Staatsrecht,  p.  459. 

3  The  original  draft  of  the  Constitution,   submitted    by  Prussia,  ran: 
"the  entire  military  legislation  of  Prussia,  etc.,  is  introduced."     This  wording 
was,  therefore,  purposely  amended  so  as  to  read:  "is  to  be  introduced 
without  delay." 

4  In  actual  practice  both  the  Bundespraesidium  and  the  several  States  have 
been  considered  competent  to  publish  "  Einfuhrungsverordnungen."     See 
Laband,  IV.  p.  20,  note  6.     The  question  has  no  permanently  practical  value, 
owing  to  the  temporary  character  of  the  provisions  of  the  Article  under  dis- 
cussion.    It  is  of  interest  only  as  it  touches  the  general  theory  underlying  the 
organization  of  the  army. 


34O  THE  GERMAN   EMPIRE 

3.  Article  61,  Cl.  i,  relates  only  to  such  legislation  and 
regulation  as  was  in  force  at  the  time  the  Constitution  was 
published.  It  does  not  carry  with  it  the  application  of  any 
future  legislation  by  the  Prussian  authorities  affecting  the 
Prussian  army.  Nor  does  this  article  guarantee,  therefore, 
a  permanent  uniformity  in  the  military  organization  and 
administration.  In  order  to  insure  such  a  permanent  uni- 
formity, the  introduction  of  the  future  legislation  and  regula- 
tions of  the  Prussian  army  must  be  provided  for.1  To  this 
end,  Art.  63,  Cl.  5,  makes  the  following  declaration,  "For  the 
sake  of  maintaining  the  indispensable  unity  in  the  adminis- 
tration, provisioning,  arming,  and  equipment  of  all  the  troops 
of  the  German  army,  the  orders  for  the  Prussian  army  with 
respect  to  these  matters,  which  shall  be  issued  in  the  future, 
shall  be  communicated  to  the  commanders  of  the  other  con- 
tingents by  the  Committee  on  the  Army  and  Fortifications, 
for  their  proper  observance."  Thus  the  ordinance  power  of 
the  various  rulers,  as  heads  of  their  contingents,  is  preserved, 
and  at  the  same  time  uniformity  in  the  military  arrangements 
is  secured.  While,  therefore,  the  issuance  of  military  ordi- 
nances is  still  the  prerogative  of  the  several  rulers,  yet  the 
Emperor  stipulates  what  the  material  content  of  those  ordi- 
nances shall  be.  If,  now,  the  Emperor  possessed  the  ordi- 
nance power  for  the  whole  imperial  army,  there  could  be  no 
"orders  for  the  Prussian  army  "  at  all  in  the  connection  con- 
sidered in  Art.  61,  but  orders  for  the  imperial  army  only,  and 
these  would  be  effective  ipso  jure,  without  requiring  the  inter- 
position of  the  federal  committee  to  communicate  them  to 
the  commanders  of  the  several  contingents,  for  their  proper 
observance.  "If  Art.  63,  Cl.  5,  would  insure  'indispensable 
unity'  it  cannot  proceed  from  the  standpoint  that  the  ordi- 

1  Of  course  uniformity  would  be  secured  by  imperial  legislation,  but  this 
would  not  reach  the  great  body  of  matters  outside  the  legislative  field. 


THE  ARMED   FORCES  OF  THE   EMPIRE  341 

nance  power  belongs  fundamentally  to  the  Kaiser,  since,  in 
that  case,  an  endangering  of  the  unity  would  be  quite  un- 
thinkable." 1  The  express  prominence  given  to  the  fact  that 
the  orders  are  issued  as  orders  for  the  Prussian  army,  and  the 
specific  distinction  of  the  Prussian  army  from  the  remaining 
contingents,  show  that  we  are  dealing  here  with  orders  issued 
by  the  king  of  Prussia  as  head  of  the  Prussian  contingent, 
not  by  the  Kaiser  as  such.  For  what  need  of  the  mediation 
of  the  federal  committee,  in  order  to  make  these  orders  effec- 
tive in  the  other  contingents,  if  they  are  issued  by  the  Kaiser, 
and  within  his  competence,  for  the  one,  indivisible  imperial 
army?  The  notion  that  the  committee,  in  transmitting 
these  ordinances  to  the  several  commanders,  acts  under 
commission  of  the  Kaiser,  contradicts  both  the  Constitution 
and  the  actual  status.  The  committee  is  made  up  of  deputies 
of  the  rulers,  particularly  of  the  heads  of  contingents.  The 
transmission  of  these  ordinances  to  the  committee  is  there- 
fore a  communication  of  them  to  the  rulers  and  governments, 
imposing  upon  the  latter  the  obligation  to  carry  these  matters 
through.  The  Constitution  proceeds  on  the  hypothesis  that 
every  ruler  is  at  the  same  time  head  of  a  contingent.  In  order 
to  avoid  the  roundabout  route  which  the  communication  of 
the  Prussian  ordinances  to  all  these  rulers  would  necessitate, 
the  federal  committee  was  intended  to  serve  as  an  intermedi- 
ary, or  means  of  forwarding  these  ordinances  handed  over 
to  it.  But  after  almost  all  the  contingents  had  annexed  them- 
selves, by  military  conventions,  to  the  Prussian  contingent, 
there  was  no  need  more  for  this  medium  of  communication.2 
In  Wiirttemberg,  which  still  preserves  its  own  contingent,  by 
the  military  convention  already  referred  to,  Art.  15,  a  direct 

1  Hecker,    article    "  Armeebejehl    und    Armeeverordnung,"    in    Stengel's 
Worterbuch  d.  D.  Verwaltungsrechts,  I.  p.  64. 

2  See  Giimbel,  op.  cit.  p.  162. 


342  THE  GERMAN   EMPIRE 

exchange  of  documents  between  the  War  Ministry  of  Prussia 
and  that  of  Wiirttemberg  was  agreed  upon.  By  this  means 
the  Wiirttemberg  Ministry  of  War  was  to  receive  all  the  rules, 
etc.,  then  in  force  or  later  issued  for  their  execution.  This 
same  method  was  also  actually  followed  in  the  case  of  Saxony. 
The  mode  recognized  by  the  Constitution  did  not  import  the 
issuance  of  ordinances  by  the  Kaiser  with  binding  force  for 
the  whole  German  army,  but  the  Constitution  does  say,  in 
effect,  that  all  the  heads  of  contingents  are  in  duty  bound  to 
make  all  the  orders  issued  to  the  Prussian  army  and  brought 
to  their  notice  by  the  king  of  Prussia,  in  due  manner,  effective 
for  their  own  troops.1  The  exclusive  right  of  the  Kaiser, 
therefore,  to  issue  military  ordinances  is  maintained  neither 
in  the  Imperial  Constitution,  where  the  military  powers  of  the 
Kaiser  are  enumerated,  Art.  63,  Cl.  3  and  4,  and  Art.  64  ff. ; 
nor  is  it  recognized  in  the  Military  Law  of  2  May,  1874,  in 
§§7  and  8  of  which  the  power  to  issue  certain  orders  is 
handed  over  to  him. 

The  actual  procedure  bears  out  what  has  been  said.  The 
ordinances  do  not  issue  in  the  name  of  the  Empire,  nor  are 
they  countersigned  by  the  Imperial  Chancellor,  but  by  the 
Prussian  Minister  of  War.  Only  when  they  affect  the  budget 
are  they  doubly  signed,  —  by  the  Imperial  Chancellor,  for 
the  financial  administration,  and  by  the  Prussian  Minister 
of  War,  for  the  "Commando-board."  Further,  these  ordi- 
nances are  not  published  in  the  Imperial  Gazette,  but  in 
the  Prussian  Armeeverordnungsblatt.  In  Saxony  and  Wiirt- 
temberg, likewise,  they  are  published  in  the  Armeeverord- 
nungsblatt of  those  States,  —  not  as  a  proclamation  of  the 
Kaiser,  nor  of  the  federal  committee,  nor  of  the  commanding 
general,  but,  precisely  as  in  Prussia  and  Bavaria,  by  the  ruler 

1  See  Hanel,  Stitdien,  II.  p.  70;  Seydel,  Comm.  p.  360;  Hecker,  op.  cit. 
p.  64. 


THE  ARMED  FORCES  OF  THE  EMPIRE  343 

of  the  State  or  by  the  Minister  of  War  at  the  ruler's  com- 
mand. There  is  no  Imperial  Army  Gazette  for  the  Empire, 
but  only  the  Official  Army  Gazette  of  the  four  States  which 
have  maintained  their  contingent  system  —  a  clear  indica- 
tion that  there  are  also  just  so  many  ordinance-issuing 
powers.1 

4.  Those  States  whose  contingents  have  been  incorporated 
in  the  Prussian  army  through  the  military  conventions,  have 
also  handed  over  to  the  king  of  Prussia  the  exercise  of  their 
right  of  issuing  military  ordinances.  Article  63,  Cl.  5,  has  no 
application  to  these  States.2 

So  far  as  Bavaria  is  concerned,  the  application  both  of 
Art.  61  and  of  Art.  63,  Cl.  5,  is  excluded.  The  introduction 
of  those  laws  and  regulations  published  prior  to  the  entry 
of  that  State  into  the  Union  is  made  dependent  on  "free 
agreement,"  i.e.  on  the  decision  of  Bavaria  herself.  The 
exercise  of  the  ordinance  power  belongs  to  the  king  of 
Bavaria,  both  as  to  form  and  matter.  Bavaria  has  specially 
reserved  the  right  to  conform  to  the  practice  of  the  other  federal 
troops  as  to  arms,  equipment,  and  insignia  of  rank.  In 
short,  Bavaria  is  guaranteed  the  right  of  self-determination  in 
these  matters.  On  the  other  hand,  Bavaria  is  obligated  to 
conform  completely  to  the  norms  laid  down  for  the  other 
federal  troops  with  respect  to  the  organization,  formation, 
instruction,  and  fees,  as  well  as  to  mobilization.3 

1  See  also  here  Laband,  IV.  p.  23,  note  2. 

2  Nor  to  Alsace-Lorraine,  where  the  exercise  of  the  rights  of  head  of  the 
contingent  belongs  to  the  Kaiser. 

3  See  Treaty  of  23  November,   1870,  III.    §  5   (i)  and  (3).     Also  the 
Schlussbestimmung  to  Abschnitt  XI  of  the  RVerf.     The  military  ordinances 
of    Bavaria  are    published   in   the  Verordnungsblatt  des  konigl,  bayerisch. 
Kriegsministerium, 


344  THE  GERMAN  EMPIRE 


THE  SUPREME   COMMAND  OVER  THE    ARMED  FORCES 
OF  THE  EMPIRE  1 

While  military  commands  (Armeebejehle)  and  military  or- 
dinances (Armeeverordnungeri)  both  fall  within  the  general 
category  of  orders  issued  in  the  regulation  of  service,  and  both 
find  their  legal  binding  force  in  the  obligation  to  obey  which 
rests  upon  all  who  assume,  in  any  capacity,  a  part  in  the  public 
service,  yet  there  is  a  sharp  distinction  to  be  drawn  between 
the  two  forms  of  command,  a  distinction  which  has  occasioned 
no  little  debate  among  writers  on  German  constitutional  law. 
It  is  a  fundamental  principle  in  all  monarchical  governments, 
that  is,  in  all  constitutional  monarchies,  that  all  acts  done  by 
the  head  of  the  State,  acting  in  an  official  or  governmental 
capacity,  require  for  their  validity  the  counter-signature  of  a 
minister,  who  thereby  assumes  responsibility  for  them.  Mili- 
tary ordinances  are  not  exempt  from  this  general  rule.  They, 
too,  require  the  signature  of  a  responsible  minister.2  Mili- 
tary commands,  however,  are  not  so  countersigned.  The 
reason  for  this  difference  of  treatment  grows  out  of  the  fact 
that  while  military  commands  and  military  ordinances  are 
special  or  general  orders  within  the  sphere  of  military  admin- 
istration —  using  the  word  "  administration"  here  in  its  widest 
sense,  —  yet  they  flow  from  different  powers.  In  the  one 
case,  they  proceed  from  the  ruler  in  the  direct  exercise  of  his 
functions  as  commander  of  the  army.  They  are  military 
commands  in  the  strict  sense.  In  the  other  case,  while  they 
issue  from  the  ruler  also,  yet  it  is  not  from  the  ruler  in  his 

1  This  subject  is  thoroughly  discussed  by  Gumbel  in  Hirth's  Annalen, 
1899,  pp.  157  ff. 

1  This  is  true  also  in  Prussia,  where  the  matter  is  regulated  by  the  Procla- 
mation of  18  January,  1861  (Min.  Bl.  jiir  die  innere  Verwaltung,  1861,  p.  73). 
See  also  Keeker's  article  in  Stengel's  Worterbuch,  I.  p.  63 ;  Laband,  IV.  p.  33. 


THE  ARMED   FORCES  OF  THE  EMPIRE  345 

capacity  as  head  of  the  army,  but  rather  as  head  of  the 
Government.  These  orders,  therefore,  issued  in  the  sphere 
of  administration  in  the  narrower  sense,  are  military  ordi- 
nances.1 As  such  they  must  be  countersigned  by  a  respon- 
sible minister,  like  other  governmental  acts. 

The  same  principle  holds  also  with  respect  to  the  Empire 
and  the  powers  of  the  Emperor.  Some  confusion  is  apt  to 
arise  from  the  fact  that  the  wording  of  the  present  Constitu- 
tion does  not  sufficiently  indicate  certain  distinctions  brought 
out  in  the  Constitution  of  the  North  German  Confederation, 
of  which  the  present  Constitution  is  a  revision.  Article  17  of 
the  Constitution  of  the  North  German  Confederation,  — 
the  last  sentence  of  the  article,  —  reads,  "The  orders  and 
decrees  of  the  Bundespraesidium  require  for  their  validity 
the  counter-signature  of  the  Chancellor,"  etc.  Here  the 
Bundespraesidium  acted  in  a  governmental  capacity.  Article 
63,  on  the  other  hand,  dealing  with  the  military  system  of  the 
Bund,  declares  that  "the  total  land  force  of  the  Union  shall 
constitute  a  single  army,  which,  in  war  and  peace,  stands 
under  the  command  of  the  king  of  Prussia  as  commander- 
in-chief  of  the  Bund  \Bundes feldherr]"  Article  53  reads: 
"The  navy  is  a  united  one,  under  Prussian  supreme  com- 
mand," the  organization,  etc.,  being  given  over  to  the  king 
of  Prussia.  In  the  use  of  these  different  expressions  — 
"Bundespraesidium,"  " Bundes feldherr"  and  "Konig  von 
Preussen,"  —  which  are  employed  throughout  the  Constitu- 
tion of  the  North  German  Confederation,  the  various  func- 
tions of  the  head  of  the  Bund,  whether  acting  in  a  govern- 
mental capacity  or  as  supreme  commander  of  the  armed 

1  Army  orders  which  contain  matters  affecting  the  budget  and  those  which 
affect  other  branches  of  the  military  administration,  take  thereby  the  charac- 
ter of  military  ordinances  and  are  to  be  so  treated.  Hecker,  op.  cit.  p.  63. 
See  also  Gneist,  Verwaltung,  Justiz,  Recktsweg.  p.  258. 


346  THE  GERMAN  EMPIRE 

forces,  are  clearly  differentiated.  The  Constitution  de- 
manded the  countersigning  of  all  the  acts  of  the  Bundes- 
praesidium  by  the  Chancellor  of  the  Bund.  Nothing  of  the 
sort  was  required  for  the  acts  of  the  Bundesfeldherr,  although 
the  acts  of  the  Bundespraesidium  and  the  acts  of  the  Bundes- 
feldherr were  acts  of  one  and  the  same  physical  person.  In 
the  revision  of  the  Constitution  of  the  Confederation,  at  the 
time  the  Empire  came  into  being,  the  word  "Kaiser"  was 
everywhere  substituted  for  the  words  "Bundespraesidium," 
"Bundesfeldherr"  and  " Konig  von  Preussen,"  in  order  to 
make  the  phraseology  of  the  Constitution  conform  to  the  new 
conditions.  In  making  these  changes  in  the  wording  of  the 
Constitution,  there  was  not  the  slightest  intention  of  making 
any  amendment  to  the  substance  of  that  instrument.  No 
change  in  the  constitutional  law  of  the  Union  was  contem- 
plated by  the  revision,1  nor  was  the  idea  entertained  of  requir- 
ing the  signature  of  the  Imperial  Chancellor  to  those  military 
orders  with  respect  to  which  no  such  regulation  had  hitherto 
existed  either  in  the  Prussian  or  federal  law.2  Just  as  little 
did  the  substitution  of  the  word  "Kaiser"  for  the  word 
"Bundespraesidium"  release  the  governmental  acts  of  the 
Kaiser  from  the  operation  of  Art.  17  of  the  Constitution  of  the 
North  German  Confederation.  In  fact,  the  counter- signature 
of  the  Chancellor  as  required  by  that  article  was  expressly 
retained  in  the  revised  Imperial  Constitution.  The  present 
status,  therefore,  is  this:  all  orders  issued  by  the  Kaiser, 
acting  in  a  praesidial  capacity,  even  though  they  touch  military 
matters,  must  be  countersigned  by  the  Imperial  Chancellor. 
All  orders  issued  in  his  character  of  commander-in-chief  — 
Bundesfeldherr  —  do  not  need  such  counter- signature  for 

1  See  debates  of  the  constituent  Reichstag,  especially  the  speech  of  Lasker 
and  that  of  Bismarck,  Sten.  Ber.  p.  95. 

2  Laband,  IV.  p.  33.    Cf.  also  id.  I.  pp.  193  ff. 


THE  ARMED   FORCES  OF  THE  EMPIRE  347 

their  validity.  The  decisive  point  is  not  the  form  in  which 
these  orders  are  issued  nor  the  officials  to  whom  they  are 
issued,  but  the  character  in  which  the  Kaiser  is  acting  in 
the  issuance  of  such  orders.1 

The  Kaiser  does  not  stand  in  the  relation  of  a  monarch  to 
the  German  people  or  to  the  imperial  territory.  The  doc- 
trine of  monarchical  government,  that  the  head  of  the  State  is 
bearer  of  the  power  of  the  State,  —  Trdger  der  Staatsgewalt, — 
with  its  various  implications,  does  not  apply  to  him.  Never- 
theless, under  the  Imperial  Constitution,  the  Kaiser  is  vested 
with  a  very  important  part  of  the  State's  power,  the  power  of 
supreme  military  command,  —  the  Kommandogewalt,  —  and 
he  exercises  this  power  under  special  provisions  of  the  Con- 
stitution, independently  of  his  rights  and  authority  as  the  in- 
cumbent of  the  praesidial  office.  If  political  science  demands 
that,  as  president  of  the  Bund,  he  be  subjected  to  a  certain 
restraint  through  the  necessity  of  the  counter- signature  of  all 
his  governmental  acts  by  a  responsible  minister,  military 
science  no  less  demands  that  as  commander-in-chief  of  the 
imperial  forces  he  be  given  wide  latitude,  and  be  exempt  from 
that  restraint  which  would  follow  the  assumption,  by  another, 
of  official  responsibility  for  his  orders  and  commands.2 

The  rights  and  duties  of  the  Kaiser,  which  grow  out  of  his 
power  of  supreme  military  command,  may  be  summed  up  as 
follows :  — 

I.  The  right  to  obedience  on  the  part  of  all  the  German  troops. 
This  right  is  expressly  laid  down  in  Art.  64,  Cl.  i,  of  the  Con- 
stitution: "All  German  troops  are  bound  (verpflichtet)  to 

1  Brockhaus,  op.  cit.  p.  82,  makes  the  curious  statement  that  "  ordinances 
are  commands  with  counter-signature,  commands  are   ordinances  without 
counter-signature."     Failing,  however,  to  lay  down  any  norm  by  which  one 
may  decide  when  orders  are  to  be  countersigned  and  when  not,  his  dictum  is 
absolutely  worthless. 

2  Laband,  IV.  p.  35. 


348  THE  GERMAN  EMPIRE 

obey  the  commands  of  the  Kaiser.  [The  word  was  Bundes- 
jeldherr  in  the  constitution  of  the  North  German  Confedera- 
tion.] This  obligation  is  to  be  assumed  in  the  military  oath 
[Fahneneid]." 

II.  The  right  0}  appointing  the  highest  commanding  officers 
of  the  contingents.     This  right  is  conferred  by  Art.  64,  Cl.  2, 
of  the  Constitution:    "The  highest  commanding  officers  of 
a  contingent,  as  well  as  all  officers  who  command  more  troops 
than  a  contingent,  and  all  the  commandants  of  fortifications, 
are  appointed  by  the  Kaiser  [Bundes feldherr,  in  the  consti- 
tution of  the  North  German  Confederation].    The  officers 
appointed  by  him  to  take  the  oath  of  fealty  to  him  [Fahnen- 
eid].    The  appointment  of  generals  or  of  officers  performing 
the  duties  of  generals,  shall,  in  every  instance,  be  subject  to 
the  approval  of  the  Kaiser."  1 

III.  The  right  of  inspection.2    It  is  the  duty  and  right  of  the 
Kaiser  to  see  to  it  that  the  armed  forces  of  the  Empire  are 
properly  organized,  equipped,  and  instructed.    In  the  lan- 
guage of  Art.  63,  Cl.  3,  of  the  Imperial  Constitution:    "It 
shall  be  the  right  and  the  duty  of  the  Kaiser  to  see  that 
throughout  the  German  army  all  divisions  have  their  full 
numerical  strength  and  are  fit  for  active  service;   that  uni- 
formity is  established  and   maintained  with  respect   to   the 
organization  and  formation,  the  equipment  and  command, 
the  training  of  the  men  and  the  qualifications  of  the  officers. 

1  Art.  5  of  the  military  convention  with  Wurttemberg,  21-25  November, 
1870,  reads:  "The  appointment,  promotion,  and  transfer  of  officers  and 
officials  in  the  Wurttemberg  army  corps  shall  take  place  through  His  Maj- 
esty, the  King  of  Wurttemberg;  in  the  case  of  the  highest  commanding 
officers,  after  the  consent  of  His  Majesty,  the  King  of  Prussia,  as  Bundes- 
jeldherr,  has  been  previously  obtained." 

*  See  article  of  Giimbel,  already  cited,  pp.  157  ff.  So  far  as  Prussia  and  the 
contingents  incorporated  with  it  by  military  conventions  are  concerned,  this 
right  belongs  to  the  king  of  Prussia  as  Kontingentsherr ,  irrespective  of  this 
clause  in  the  Imperial  Constitution. 


THE  ARMED   FORCES  OF  THE   EMPIRE  349 

To  this  end  the  Emperor  is  authorized  to  satisfy  himself  at 
any  time,  by  inspection,  as  to  the  condition  of  the  several 
contingents,  and  to  order  the  cure  of  all  defects  thereby 
discovered."1 

IV.  The  right  to  determine  the  effective  strength  of  the 
army,  and  the  division  and  classification  of  the  contingents. 
This  right  is  based  on  Art.  63,  Cl.  4,  of  the  Imperial  Consti- 
tution :  "  The  Kaiser  shall  determine  the  effective  strength, 
division,  and  classification  of  the  contingents  of  the  German 
army,  as  well  as  the  organization  of  the  land  defence  [Land- 
•wehr]."  Certain  limitations  have  been  placed  upon  the  exer- 
cise of  this  right  by  the  provisions  of  the  military  law  and  the 
additions  made  to  it. 

(1)  With  respect  to  the  standing  army  in  time  of  peace,  the 
authority  of  the  Kaiser  extends  only  to  those  "tactical  and 
administrative  units,  as  well  as  to  those  special  formations," 
which  are  not  mentioned  in  the  military  law.2 

(2)  While  the  Emperor  has  the  right  to  determine  the  or- 
ganization, division,  and  classification  of  the  land  defence, 

1  "  Since  all  the  troops  must  render  unconditional  obedience  to  the  Kaiser, 
it  follows  that  these  orders  may  issue  directly  and  immediately  from  the 
Kaiser  to  the  respective  officers  and  officials  of  the  troops.     It  has  been 
agreed,  however,  by  military  convention  with  Saxony,  Art.  4,  Cl.  2,  and  with 
Wurttemberg,  Art.  9,  Cl.  2,  that  the  Kaiser  shall  communicate  the  criticisms 
resulting  from  his  inspection  to  the  kings  of  Saxony  and  of  Wurttemberg  re- 
spectively, who,  on  their  part,  are  pledged  to  cure  the  defect  and  inform  the 
Emperor  of  the  same.     By  this  means,  the  collision  which  might  arise  from 
the  distinction  between  the  right  to  issue  military  ordinances  and  to  issue 
military  commands  is  avoided.     With  respect  to  military  commands,  the 
principle  holds  that  the  Emperor  fixes  the  material  content  of  the  order  and 
the  formal  issuance  takes  place  through  the  king.    In  the  other  States  which 
have  bound  themselves  to  Prussia  such  a  collision  is  impossible,  since  the  Em- 
peror exercises  the  rights  of  Kontingentsherr."     Laband,  IV.  p.  36,  note  3. 

2  In  the  military  agreements  with  Saxony,  Wurttemberg,  Hesse,  the  two 
Mecklenburgs,   Baden,   Oldenburg,   the    Thuringian    States,   Anhalt,  and 
Braunschweig,  certain  agreements  are  drawn  up  with  respect  to  the  forma- 
tion of  the  individual  contingents. 


35O  THE  GERMAN  EMPIRE 

yet  §  5  of  the  Military  Law  of  1874,  —  revised  wording  of 
25  March,  1899,  —  lays  down  the  principle  on  which  the  land 
defence  shall  be  organized.  "The  territory  of  the  German 
Empire  shall  be  divided,  so  far  as  military  affairs  are  con- 
cerned, into  22  army  corps  districts.  ...  As  a  basis  for 
the  organization  of  the  land  defence,  as  well  as  for  the  pur- 
pose of  increasing  the  army,  these  army  corps  districts  shall 
be  divided  into  division  and  brigade  districts,  and  these  again, 
according  to  area  and  population,  into  land  defence  and  con- 
trol districts."  Aside  from  the  provisions  of  this  Section, 
the  authority  of  the  Kaiser  in  this  matter  is  not  limited. 

(3)  "The  Emperor  determines  the  war  formation  of  the 
army  as  well  as  the  organization  of   the  Landsturm  [last 
reserve].1    Here  the   law  imposes  no   limitation  upon   the 
Kaiser. 

(4)  According  to  Art.  53,  Cl.  i,  of  the  Constitution,  the 
Kaiser  has  also  a  free  hand  in  the  organization  and  constitu- 
tion of  the  navy,  except  in  so  far  as  the  budget  law  lays 
upon  him  certain  restrictions  in  time  of  peace.2 

V.  The  right  oj  "dislocation"  By  authority  of  Art.  63, 
Cl.  4,  of  the  Constitution,  the  Kaiser  may  determine  the  gar- 
risons within  the  federal  territory.  In  the  exercise  of  this 
right,  the  Emperor  may  assign  parts  of  the  several  contingents 
to  garrison  duty  outside  the  bounds  of  their  own  State.  The 
military  conventions  concluded  with  the  various  States,  how- 
ever, have  contained  certain  stipulations  covering  the  matter. 

(a)  It  is  guaranteed  to  several  of  the  States  that  so  long  as 
peace  exists  their  troops  shall  remain  in  their  own  territory.3 

1  Military  Law,  §  6  (RGBl.  p.  45). 

2  See  Law  of  10  April,  1898  (RGBL  p.  165),  and  Law  of  14  June,  1900 
(RGBL  p.  255). 

*  Convention  with  Saxony,  Art.  5.  If  the  Kaiser  considers  a  transference 
of  the  Saxon  troops  called  for  by  the  interest  of  the  country,  such  disposition 
of  the  troops  may  be  made  on  agreement  with  the  king  of  Saxony.  The 


THE   ARMED   FORCES  OF  THE  EMPIRE  351 

The  disposition  of  the  Saxon  and  Wurttemberg  troops  within 
their  own  boundaries  belongs  to  the  kings  of  the  respective 
States  as  heads  of  the  contingents  (Kontingentsherreri). 

(b)  Some  of  the  States  are  assured  that  unless  the  military 
or  political  interests  specially  demand  it,  the  troops  of  other 
contingents  shall  not  be  assigned  to  garrison  duty  within  their 
territory.1 

(c)  Other  States  have  been  guaranteed  the  assignment  of 
Prussian  garrisons  to  certain  places  within  their  borders.2 

VI.  The  right  of  mobilization,  that  is,  the  right,  under  Art. 
63,  Cl.  4,  of  the  Constitution,  to  order  any  part  of  the  whole 
German  army  to  put  itself  in  readiness  for  war.  This  includes 
the  calling  out  of  the  reserves,  both  the  land  defence  and 
the  sea  defence,  as  well  as  the  Landsturm,  if  necessary.3 

So  far  as  Bavaria  is  concerned,  the  legal  provisions  touch- 
ing the  rights  and  duties  of  the  Kaiser  have  no  force.  This 
fact  is  expressly  recognized  in  the  "Final  Resolution"  ap- 
pended to  Sec.  XI.  of  the  Imperial  Constitution.4  The  troops 
of  Bavaria  are  pledged  to  obey  the  commands  of  the  Emperor 

assignment  of  the  Wurttemberg  troops  to  fortifications  outside  of  Wurttem- 
berg, unless  to  those  of  South  or  West  Germany,  can  take  place  only  with  the 
consent  of  the  king  of  Wurttemberg,  Convention  with  Wurttemberg,  Art.  6. 
See  also  Convention  with  Hesse,  Art.  6;  Baden,  Art.  4;  Oldenburg,  Art.  4, 
Cl.  2;  Thiiringian  States,  Art.  2;  Anhalt,  Art.  2. 

1  Saxony,  Military  Convention,  Art.  5 ;  Wurttemberg,  with  exception   of 
Ulm,  Art.  6;   Hesse,  with  exception  of  Mainz,  Art.  6;   Baden,  with  excep- 
tion of  Rastat,  Art.  4;    Oldenburg,  with  exception  of  city  of  Birkenfeld, 
Art.  4,  Cl.  2. 

2  Convention  with  Schwarzburg-Sonderhausen,  Art.  2 ;    Lippe-Detmold, 
Art.  2;  Schaumburg-Lippe,  Art.  2;  Liibeck,  Art.  2,  3;  Hamburg,  Art.  2,  3; 
Bremen,  Art.  3,  4;   Waldeck,  Convention  of  1877,  Art.  2. 

3  According  to  §  6,  Cl.  i,  of  the  Military  Law  of  2  May,  1874,  the  Kaiser 
is  empowered  to  take  such  measures,  even  in  time  of  peace,  as  may  be  neces- 
sary to  put  the  army  speedily  on  a  war  footing,  should  it  seem  demanded  by 
the  conditions. 

4  This  "  Final  Resolution"  provides  that  the  terms  of  the  Imperial  Con- 


352  THE  GERMAN  EMPIRE 

only  in  time  of  war.1  In  time  of  peace  they  remain  under 
the  exclusive  command  of  the  king  of  Bavaria.  Not  until 
the  mobilization  of  the  troops  has  begun  does  the  supreme 
military  command  of  the  Emperor  extend  to  the  Bavarian 
soldiery.2  But,  says  Laband,  one  must  not  conclude,  from 
the  fact  that  in  war  the  Emperor  exercises  the  right  of  supreme 
command  over  the  Bavarian  troops,  that  therefore  the  Bava- 
rian contingent  in  time  of  war  constitutes  an  indistinguishable 
part  of  the  imperial  army,  and  that  all  the  military  rights  of 
the  king  of  Bavaria  are  fully  suspended.3  For  time  of  peace, 
the  Treaty  of  23  November,  1870,  lays  down  certain  pro- 
visions designed  to  secure  the  uniformity  of  the  imperial 
army  so  far  as  the  Bavarian  contingent  is  concerned,  and  at 
the  same  time  guarantee  the  rights  of  the  king  of  Bavaria.4 
These  provisions  declare  that  the  Bavarian  contingent  shall 
constitute  a  part  of  the  German  federal  army,  complete  in 
itself,  with  an  independent  administration,  under  the  military 
supremacy  of  His  Majesty,  the  king  of  Bavaria.  With  re- 
spect to  the  organization,  formation,  instruction,  and  fees, 
as  well  as  to  the  preparedness  of  the  troops  for  mobilization, 
Bavaria  shall  bring  her  army  into  full  harmony  with  the  stand- 
ards adopted  for  the  federal  army.  Further,  the  right  and 
duty  of  the  "Bundesfeldherr"  to  satisfy  himself,  by  means  of  in- 
spection, that  the  Bavarian  contingent  is  up  to  its  full  numerical 
strength,  that  it  is  ready  for  active  service,  and  that  its  organiza- 
tion, etc.,  harmonize  with  the  rest  of  the  federal  army  are  ex- 

stitution  touching  military  affairs  shall  be  applied  to  Bavaria  in  conformity 
to  III.  §  5,  of  the  Treaty  of  23  November,  1870.  Section  5  expressly  de- 
clares that  "  Arts.  61  to  68  of  the  Imperial  Constitution  have  no  application 
to  Bavaria." 

1  See  Treaty  of  23  November,  III.  §  5  (IV). 

8  Treaty  of  23  November,  III.  §  5  (III),  Cl.  i. 

*  See  discussion  by  Laband,  in  Archiv  j.  d.  oft.  Rechl,  Bd.  III.  p.  528. 

4  Treaty  of  23  November,  1870,  III.  §  5  (III). 


THE  ARMED   FORCES  OF  THE  EMPIRE  353 

plicitly  recognized.  So  far  as  the  method  of  carrying  out  this 
inspection  is  concerned,  and  with  respect  to  the  cure  of  any 
defects  which  may  be  discovered,  the  Emperor  is  to  come  to 
an  understanding  with  the  king  of  Bavaria.  It  follows  also 
from  the  terms  of  the  treaty  that  the  Kaiser  cannot  exercise 
his  right  of  inspection  without  the  consent  of  the  king  of 
Bavaria  so  far  as  the  Bavarian  troops  are  concerned,  and  that 
there  is  no  obligation  upon  the  king  of  Bavaria  to  cure  the 
discovered  defects,  except  in  so  far  as  these  defects  may  touch 
the  organization,  formation,  etc.,  of  the  troops,  as  noted  above. 
In  other  words,  the  obligation  is  limited  to  the  terms  of  the 
treaty  affirmatively  expressed.1  The  mobilization  of  the 
Bavarian  army,  or  any  part  of  it,  is  ordered  by  the  king  of 
Bavaria,  at  the  instance  of  the  "Bundesfeldherr."  By  the 
terms  of  the  treaty  the  king  of  Bavaria  cannot  refuse  to  issue 
such  an  order,  and  on  its  issuance,  the  Bavarian  troops  pass 
under  the  control  of  the  Kaiser  as  commander-in-chief  of 
the  German  army. 

VII.  The  right  to  declare  martial  law,  or  the  introduction 
o}  military  rule,  is  granted  by  Art.  68  of  the  Imperial  Consti- 
tution, in  the  following  words:  "If  in  any  part  of  the  federal 
territory  the  public  safety  is  threatened,  the  Emperor  may 
declare  the  same  to  be  under  martial  law.  Until  the  publica- 
tion of  an  imperial  law  regulating  the  conditions  under  which 
such  declaration  may  be  made,  the  form  of  announcement,  and 
the  effects  of  the  same,  the  provisions  of  the  Prussian  law  of 
4  June,  1851  (G.S.  }ur  1851,  pp.  451  ff.)  shall  be  in  force."  2 
By  the  terms  of  this  article  the  Kaiser,  in  his  character  of  com- 

1  Laband,  IV.  p.  40. 

2  From  the  fact  that  this  article  occurs  in  Sec.  XI  of  the  Constitution,  which 
bears  the  title  "  Imperial  Military  Affairs,"  and  from  the  further  fact  that, 
according  to  the  wording  of  the  Constitution  of  the  North  German  Confedera- 
tion, this  right  was  given  to  the  Bundesfeldherr  and  not  to  the  Bundesprae- 
sidium,  it  may  be  safely  concluded  that  this  right,  under  the  Constitution, 


354  THE  GERMAN   EMPIRE 

mander-in-chief  of  the  federal  army,  has  the  exclusive  right 
to  declare  any  part  of  the  federal  territory  to  be  under  military 
rule,  has  the  exclusive  right,  that  is,  under  certain  conditions, 
to  establish  what  virtually  amounts  to  a  military  dictatorship. 
So  far  as  it  determines  the  conditions  under  which  this  may  be 
done,  the  form  of  announcement  and  the  effects  thereof,  the 
Prussian  Law  of  4  June,  1851,  becomes,  for  the  territory 
affected,  imperial  law. 

By  the  terms  of  this  Prussian  law,  martial  law  may  be 
declared  (a)  in  case  of  war,  in  those  parts  already  invested 
by  the  enemy  or  threatened  with  such  investment;  (b)  in 
case  of  an  insurrection,  whether  in  war  or  peace,  when  there 
is  pressing  danger  to  the  public  safety.1  In  either  case  it  is 
the  Kaiser  who  decides  whether  the  conditions  exist  which 
justify  the  declaration  of  martial  law.  The  State  gov- 
ernments have  no  right  either  of  assent  or  of  dissent,  nor  is 
the  question  to  be  submitted  to  the  action  of  Bundesrat  or 
Reichstag,  as  falling  within  such  jurisdiction  or  competence 
as  they  may  claim  under  the  Constitution  or  laws  of  the  Em- 
pire.2 

The  ordinance  of  the  Kaiser  declaring  martial  law  must 
be  published  in  the  Imperial  Gazette.  Further,  it  must  be 
brought  to  the  general  knowledge  of  territory  affected,  and  in 
all  the  communes  thereof.  This  proclamation  must  take 
place  "without  delay"  and  in  the  following  manner :  by  read- 
ing the  ordinance  aloud,  accompanied  by  drum  beat  or  the 

flows  out  of  the  supreme  "  Commando-power"  of  the  Kaiser  and  is  part 
thereof.  Laband,  IV.  p.  40. 

1  Prussian  Law  of  1851,  Sees.  1,2. 

*  Laband,  IV.  p.  41.  See  also  Article  by  Seydel,  in  Stengel's  Worterbuch, 
I.  pp.  158  ff.,  on  the  "Belagerungszustand."  The  ordinances  of  the  Kaiser 
need  the  counter-signature  of  the  Imperial  Chancellor  and  are  to  be  published 
in  the  RGBl.  Military  commanders  and  civil  authorities  cannot  declare  a 
state  of  siege.  Seydel,  op.  cit.  p.  159;  Hanel,  Staatsrecht,  I.  pp.  442,  443. 


THE  ARMED   FORCES  OF  THE  EMPIRE  355 

blast  of  trumpet,  and  either  by  a  notice  communicated  to  the 
officials  of  the  commune,  by  placards  in  public  places,  or 
by  publication  in  the  public  print.  Such  proclamation  must 
be  made  with  drum  beat  or  trumpet  blast,  and  must  be 
accompanied  by  one  of  the  three  other  forms  of  announce- 
ment. It  is  not  necessary,  though  it  is  permissible,  to  use  all 
three  modes  of  supplementary  notification.  The  raising  of 
a  state  of  siege  is  also  effected  by  ordinance  of  the  Kaiser, 
and  is  brought  to  general  knowledge  through  notices  addressed 
to  the  communal  authorities  and  through  the  public  print.1 

The  effects  of  the  proclamation  of  a  state  of  siege  are  as 
follows:  (i)  "With  the  declaration  of  martial  law,  the 
executive  powrer  passes  to  the  military  commander.  The  civil 
administrative  authorities  and  the  communal  authorities 
have  to  obey  the  orders  and  mandates  of  the  military  com- 
mander. The  military  commanders  are  responsible  per- 
sonally for  their  respective  military  orders. "  2  In  other  words, 
the  civil  authorities  become  subordinate  to  the  military  com- 
manders and  act  as  their  executive  organs.3  The  orders  of 
the  commanders  are  to  be  carried  out  without  regard  to  their 
permissibility  under  the  law,  nor  is  the  question  of  such  legal- 
ity to  be  raised.  In  yielding  the  implicit  obedience  required, 
the  civil  and  communal  authorities  are  released  from  all  re- 
sponsibility for  the  legality  of  the  measures  executed. 

(2)   All  military  persons,  during  the  period  of  the  military 

1  Prussian  Law,  1851,  §  3  ;  Seydel,  op.  cit.  p.  159. 

2  Hanel,  op.  cit.  I.  439,  says:  "With  the  declaration  of  a  state  of  war  on 
the  part  of  the  Empire,  the  executive  power,  in  the  sense  and  to  the  extent 
in  which,  according  to  the  Prussian  law,  it  passes  over  to  the  military  com- 
mander, passes  from  the  individual  state  to  the  Empire,  from  the  individual 
ruler  to  the  Kaiser.     For  the  Kaiser  is  possessor  (Inhaber)  of  the  military 
power  of  command,  and  every  military  commander  is  subordinated  to  him 
in  a  relation  of  unconditional  obedience  in  all  his  functions." 

3  Military  Criminal  Code,  §  9,  (2),  (3). 


356  THE  GERMAN  EMPIRE 

rule,  are  subject  to  the  laws  passed  for  the  state  of  war,  and 
the  commander  of  the  garrison  (Besatzung)  has  jurisdiction 
over  all  persons  belonging  thereto.1 

(3)  Certain  of  the  more  heinous  crimes,  which,  if  committed 
under  normal  conditions,  would  be  punished  by  imprison- 
ment for  life  in  a  penitentiary,  are,  when  committed  in  a  place 
or  district  declared  in  a  state  of  war,  visited  with  the  death 
penalty.2    For  certain  other   crimes   mentioned  hi  §  9  of 
the  Prussian  Law,  where  the  existing  code  imposes  no  higher 
penalty,  imprisonment  up  to  one  year  is  inflicted. 

(4)  The  provisions  of  Book  I,  §§  8  and  9,  of  the  Code  of 
Criminal  Procedure,  relating  to  seizures  and  searches  and  to 
arrests  and  preliminary  detentions,3  the   provisions   of   the 
imperial  Press  Law  of  7  June,  1874,  as  well  as  the  State  laws 
respecting  the  right  of  assembly  and  of  association,  and  the 

1  Prussian  Law,  §§  6,  7. 

2  See  Law  introducing  the  Criminal  Code  of  31  May,  1870,  §  4.    This 
section   replaced    §  8  of    the   Prussian   law  touching   this  subject.     The 
crimes  which,  if  committed  under  a  state  of  siege,  may  be  visited  with  the 
death  penalty,  are  those  dealt  with  in  the  following  sections  of  the  Criminal 
Code:   81,  high  treason;   88,  treason  against  a  State;   90,  treason  in  war; 
307,  arson;  311,  destructive  use  of  explosives ;  312,  endangering  human  life 
by  flooding  the  country;  315,  destruction  of  railroad  property,  or  the  use  of 
false  signals,  etc.,  resulting  in  the  destruction  of  human  life;  322,  destruction 
of  beacons,  etc.,or  the  use  of  false  signals  by  which  ships  are  deceived  and 
human  life  destroyed;   323,  the  stranding  or  sinking  of  a  ship,  resulting  in 
the  destruction  of  human  life ;  324,  the  poisoning  of  wells  or  reservoirs  of 
water,  or  of  articles  designed  for  public  sale  or  use,  so  that  human  life  is 
taken  thereby.     The  death  penalty  is  inflicted  only  upon  those  crimes  for 
the  commission  of  which  a  life  penalty  is  imposed  in  a  time  when  a  state 
of  war  does  not  exist.     With  respect  to  crimes  of  a  less  degree,  committed 
in  territory  under  a  state  of  war,  the  death  penalty  may  not  be  imposed, 
but  the  provisions  of  the  Criminal  Code  remain  in  force,  and  are  not  affected 
by  the  fact  that  a  state  of  military  rule  has  been  introduced.     See  Oppen- 
hoff,  Kommentar  zum  Strajgesetzbuch,  Berlin,  1901,  p.   9,  note   7  to  §  4  of 
the  Einjiihrungsgesetz.    Also  John,  in  HolzendorfFs  Handbuch,  III.  p.  58 ; 
Laband,  IV.,  p.  43. 

8  Comprising  §§  94  to  132  of  the  Strajprozessordnung. 


THE  ARMED    FORCES   OF  THE   EMPIRE  357 

interference  of  armed  forces,  may  be  suspended  in  time  of  such 
military  rule.  Should  such  a  suspension  be  regarded  as  nec- 
essary, "a  declaration  to  such  effect  must  be  expressly 
made  in  the  proclamation  announcing  a  state  of  siege,  or  in 
a  special  ordinance  to  be  promulgated  according  to  the  pre- 
scribed form."  * 

(5)  Under  the  same  conditions,  i.e.,  by  express  declaration 
through  proclamation,  etc.,  courts-martial  may  be  erected,2 
which  shall  be  competent  to  try  cases  of  high  treason,  treason 
against  a  State,  murder,  riot,  violent  resistance,  destruction  of 
railroads  and  telegraphs,  release  of  prisoners,  mutiny,  rob- 
bery, plundering,  extortion,  seducing  soldiers  to  unfaithful- 
ness in  duty,  as  well  as  cases  mentioned  in  §  9  of  the  Prus- 
sian Law,  already  referred  to.3 

The  question  whether  the  ruler  of  a  State  has  also  the  right 
to  declare  his  territory  in  a  state  of  war  —  at  least  in  time  of 
peace  —  is  denied  by  Laband,  on  the  following  grounds :  * 
the  declaration  of  a  state  of  war  flows  out  of  the  Kaiser's 
supreme  power  of  military  command.  The  individual  States 
are  not  authorized  to  interfere  therein.  Especially  is  it  to  be 
emphasized  that  they  are  not  empowered  to  hand  over  to  the 
military  commandants  the  whole  control  of  the  civil  adminis- 
tration, with  the  responsibility  thereof,  and  to  alter  arbitrarily 

1  Prussian  Law,  §  5.  2  Ibid.  §  5,  Cl.  i. 

3  See  note  i,  preceding  page;  Prussian  Law,  §  10,  Cl.  i.      These  courts- 
martial  are  not  to  be  confounded  with  the  military  courts  mentioned  under 
the   same   name  (Kriegsgerichte)   in    §  49   of   the    Mil.Str.Ger.    Ord,  of    i 
December,  1898  (RGBl.  p.  1189).     The  composition  of  the  courts-martial  in 
time  of  military  rule,  as  well  as  the  procedure,  is  provided  for  in  the  Prussian 
Law  of  1851,  §§  11-13,  modified  by  §§  20,  27  of  the  Mil.Str.Ger.  Ord.  of 
1898. 

4  The  same  position  is  taken  by  Hanel,  I.  p.  440  ff.,  especially  note  19. 
See  also  Brockhaus,  op.  cit.  pp.  73  ff. ;  Seydel,  op.  cit.  p.  158,  and  inZeitschr. 
/.  d.  R.  VII,  p.  619  ff.;  Zorn,  Staatsr.  I.  pp.  313  ff.;  Bornhak,  Pr.  Staatsr. 
III.,  pp.  131,  132. 


358  THE  GERMAN   EMPIRE 

the  organization  of  the  military  courts  (Militargerichtsverjas- 
sung).  But  these  are  precisely  the  legal  consequences  of  the 
declaration  of  a  state  of  siege,  mentioned  in  §§  4,  6,  and  7 
of  the  law.  No  commandant  of  a  fortification,  no  com- 
manding general,  would  dare  carry  out  an  order  of  such  a 
nature  unless  it  proceeded  from  the  Kaiser.  Most  certainly 
not  against  the  will  of  the  Kaiser.  In  the  second  place,  the 
several  States  have  no  authority  to  set  aside  arbitrarily,  or 
to  amend,  imperial  law.  The  declaration  of  a  state  of  war, 
however,  involves  a  temporary  amendment  of  the  Criminal 
Code,  and,  so  far  as  courts- martial  are  set  up,  an  amendment 
also  of  the  Law  of  Judicial  Organization  and  of  the  Code  of 
Criminal  Procedure.  When  §  4  of  the  law  introducing  the 
Criminal  Code  states  that  crimes  therein  enumerated  shall 
be  visited  with  the  death  penalty  only  when  the  Kaiser  has 
declared  a  state  of  war  to  exist  in  the  locality  where  the  said 
crimes  were  committed,  it  is  not  within  the  power  of  any  State 
ruler  to  set  this  law  in  operation.  Article  68  of  the  Imperial 
Constitution  empowers  the  Kaiser  alone  to  suspend  tempora- 
rily existing  rights  and  laws.1 
What  has  been  said  with  respect  to  the  declaration  of  a  state 


1  Von  Mohl  argues  from  the  right  of  the  State  rulers  to  "  requisition"  the 
"  dislocirlen"  troops  in  their  territory,  for  police  purposes,  under  Art.  66 
of  the  RVerf.,  that  they  have  also  the  right  to  declare  a  state  of  war.  Laband 
says  that  Art.  66  implies  the  very  opposite.  In  case  of  a  requisition  the  troops 
interfere  only  on  request  of  the  civil  authorities  and  for  their  support.  In  a 
state  of  war,  the  military  commander  is  lord.  He  requisitions  the  civil 
authorities  and  gives  them  orders  when  he  needs  their  assistance.  The 
requisition  for  police  purposes  postulates  a  continuance  of  the  common  law ; 
a  state  of  war  is  a  temporary  suspension  of  it.  The  RVerj.,  therefore,  with 
good  reason  distinguishes  between  them,  when,  in  Art.  66,  it  grants  to  the 
State  the  right  to  requisition  troops,  but  in  Art.  68  gives  to  the  Kaiser  the 
right  to  declare  a  state  of  war,  and  precisely  because  of  this  distinction  it 
may  be  justly  concluded  that  the  States  have  not  the  right  mentioned  in 
Art.  68. 


THE   ARMED   FORCES   OF  THE   EMPIRE  359 

of  war  has  no  application  to  Bavaria.  By  the  express  terms 
of  the  November  Treaty,  as  has  already  been  remarked,  Arts. 
6 1-68  of  the  Imperial  Constitution  have  no  operation  in  this 
State.  Since  the  Kaiser,  in  time  of  peace,  is  not  commander- 
in-chief  of  the  Bavarian  troops,  and  since  troops  from  other 
States  may  not  be  assigned  to  Bavarian  garrisons,  it  follows 
that  in  time  of  peace  the  Kaiser  has  no  power  to  declare  Ba- 
varia, or  any  part  of  it,  in  a  state  of  war.  The  November 
Treaty,  however,  does  not  affect  the  competence  of  the  Em- 
pire to  pass  a  law  with  respect  to  the  declaring  of  any  part  of 
the  federal  territory  in  a  state  of  war.  Should  such  a  federal 
law  be  passed,  it  would  be  effective  also  in  Bavaria.1  Since 
the  right  of  the  Emperor  to  declare  military  law  in  Bavaria 
is  excluded,  such  right  must  belong  to  the  king  of  that  State.2 

THE  MILITARY  SUPREMACY  OF  THE  INDIVIDUAL  STATES 

Under  the  old  German  Empire,  the  imperial  army  was 
made  up  of  contingents  from  the  various  States.  The  size 
of  these  contingents  was  determined  on  a  basis  of  population, 
computed  from  a  certain  imperial  list,  or  "  Reichsmatrikel." 
The  imperial  army,  therefore,  did  not  consist  of  the  sum 

1  This  competence  is  based  on  Art.  4.  (14)  of  the  RVerf.  and  is  recognized 
in  the  November  Treaty,  III.  5,  VI.     Such  a  law  has  not  yet  been  passed. 

2  The  Law  of  22  April,  1871  (RGBl.  p.  87),  §  7,  says:   "An  Stelle  der 
Vorschriften  des  §  4  gedachten  Einfuhrungsgesetzes  (i.e.  Law  introducing 
the  Criminal  Code),  hat  es  fur  Bayern  bis  auf  Weiteres  bei  den  einschlagigen 
Bestimmungen  des  Militarstrafrechts   sowie  bei  den  sonstigen    gesetzliche 
Vorschriften  uber  das  Standrecht  sein  Bewendens."     Section  16  of  the  GVG. 
also  declares  that  in  prohibiting  exceptional  courts  and  in  guaranteeing  to 
every  man  his  legal  judge,  the  provisions  of  the  law  with  respect  to  a  state 
of  war  are  not  thereby  affected.     For  a  brief  outline  of  the  question  of  de- 
claring a  state  of  war  in  Bavaria,  see  Seydel,  in  Stengel's  Worterb.  p.  163, 
and  in  Bayr.  Staatsr.  Bd.  3,  pp.  44  ff.      For  the  declaration  of  a  state  of  war 
in  Alsace-Lorraine,  see  Law  of  30  May,  1892  (RGBl.  p.  667).     See  also 
Laband,  IV.  pp.  46,  47. 


360  THE  GERMAN   EMPIRE 

total  of  all  the  land  forces  of  the  several  States,  but  was  made 
up  of  parts  of  these  State  armies,  contributed  for  the  purpose.1 
This  system  continued  under  the  German  Confederacy. 
With  the  erection  of  the  North  German  Confederation  and 
the  German  Empire,  a  problem  arose:  how  to  concentrate 
all  the  troops  of  all  the  States  into  one  great  imperial  army, 
and  at  the  same  time  preserve  the  military  supremacy  of  the 
individual  commonwealths,  if  possible,  intact.  Each  State 
laid  jealous  claim  to  the  possession  of  sovereignty.  How 
could  there  be  sovereignty  without  military  supremacy? 
Military  supremacy  was  regarded  as  the  most  prominent 
feature  of  State  power,  and  the  very  sign  and  symbol  of  State 
sovereignty.  In  the  settlement  of  this  problem,  —  which 
is  simply  one  phase  of  the  general  problem  of  the  partition  of 
powers  between  the  Empire  and  the  several  States,  —  the 
same  principle  holds  good  that  obtains  in  other  departments 
of  the  federal  organization :  all  powers  not  expressly  with- 
drawn from  the  several  States  by  the  Imperial  Constitution,  or 
by  imperial  law  within  the  Constitution,  remain  vested  in  the 
States.  The  theory,  therefore,  on  which  the  military  powers 
are  distributed,  is  this :  every  State  has  its  own  troops,  and 
is  in  possession  of  military  supremacy.  This  supremacy 
is  to  be  limited  only  so  far  as  may  be  required  in  order  to 
secure  the  unity  of  the  federal  army,  which  is  composed  of 
these  State  troops.2 

In  the  military  organization  under  the  Imperial  Constitu- 
tion, the  word  "contingent"  has  come  to  have  a  broader 
meaning  than  it  hitherto  had  possessed.  The  imperial  army 

1  Mejer,  Einleitung,  p.  95.     In  time  of  peace  the  Kaiser  had  no  control 
whatever  over  these  contingents.     In  time  of  war  his  power  to  assemble 
the  troops  and  to  appoint  generals  was  conditioned  upon  the  consent  of  the 
Diet. 

2  Laband,  IV.  p.  54. 


THE  ARMED   FORCES   OF  THE   EMPIRE  361 

is  no  longer  made  up  of  parts  of  the  State  troops,  but  includes 
the  whole  armed  force  in  the  imperial  territory.  It  embraces 
all  the  troops  of  all  the  States.  These  soldiers  are  bound  to 
obey  the  Emperor  as  "  Bundesfeldherr"  and  the  expenses  and 
burdens  incident  to  the  maintenance  and  utilization  of  the 
military  organization  are  borne  in  common  by  all  the  States. 
The  word  "contingent"  is  synonymous  to-day  with  the  ex- 
pression "state  army,"  and  is  so  used  in  the  Imperial  Consti- 
tution.1 There  are  no  longer  any  "contingents"  in  the  sense 
in  which  the  word  was  used  under  the  old  Empire  and  the 
German  Confederacy. 

The  logical  situation,  then,  would  seem  to  be  this:  each 
State  has  its  own  troops,  or  contingent,  in  whose  ranks  its 
citizens  are  to  fulfil  their  military  obligations,  and  these  troops 
are,  also,  to  be  distributed  and  located  in  its  own  territory. 
And,  indeed,  this  is  the  theory  upon  which  the  Imperial  Con- 
stitution and  the  Military  Conventions  proceed.2  But  this 
theory  has  suffered  a  considerable  wrench.  While,  accord- 
ing to  the  Imperial  Constitution,  "every  German  is  bound  to 
perform  military  service,"  he  is  not  bound  to  perform  this 
service,  either  in  the  territory  or  within  the  troops  of  his  own 
State.3  Military  service  may  be  performed  in  any  State  and 
in  any  troops,  or  in  the  navy,  and  such  service,  when  so  per- 
formed, is  credited  to  him  as  fulfilment  of  his  "Wehrpflicht" 
to  his  own  State.  Further,  the  troops  of  one  State  may  be 
sent  out  of  its  territory  and  assigned  to  garrison  duty  in  an- 
other State,  while  troops  not  its  own  may  be  stationed  in  its 

1  The  word  "  Konlingentsherr  "  in  the  RVerj.,  therefore,  designated  the 
ruler  of  the  State  to  whom  the  military  service  of  the  State  troops  is  due, 
and   the  word   "  Kontingentsherrlichkeit "   means  simply  the  rights  which 
belong  to  the  ruler  in  respect  to  military  matters. 

2  Laband,  IV.  p.  55. 

3  That  is,  he  is  not  bound  to  serve  out  his  military  obligation  in  that  State 
of  which  he  is  an  "  Angehorige,"  or  citizen. 


362  THE  GERMAN  EMPIRE 

garrisons.  These  deviations  from  the  simple  theory  com- 
plicate matters  somewhat,  and  render  the  determination  of 
the  rights  of  the  several  States,  and  their  rulers,  over  their 
own  troops,  and  over  the  troops  which  may  be  stationed  in 
their  territory,  not  always  easy. 

In  discussing  the  military  supremacy  of  the  individual  States 
the  rights  which  each  State  possesses  with  respect  to  its  own 
troops  must  be  defined  and  determined.  The  military  sys- 
tem in  any  State  of  the  Empire  is  a  State  institution,  regulated 
by  imperial  law.  Each  State  possesses  all  those  rights  which 
accompany  and  flow  out  of  military  supremacy,  save  the 
right  of  legislation  on  military  matters.  This  power,  in 
accordance  with  Art.  4  (14)  of  the  Constitution,  is  vested 
in  the  Empire,  and  is  exclusive. 

Moreover,  in  the  exercise  of  their  rights  the  several  States 
are  subjected  to  certain  important  limitations.  Article  66  of 
the  Constitution  stipulates  that  where  special  conventions  1 
do  not  provide  otherwise,  the  rulers  of  the  several  States  ap- 
point the  officers  of  their  contingents.  Such  appointments 
are  not  made  in  the  name  of  the  Kaiser,  nor  do  the  rulers, 
in  making  these  appointments,  act  as  deputies  of  the  Kaiser. 
The  officers,  therefore,  so  far  as  the  military  conventions  do 
not  provide  otherwise,  derive  their  authority  from  the  ruler 
of  the  State.  The  power  of  command  which  may  be  exer- 
cised by  the  rulers  of  the  States  is  limited,  however,  by  Art. 
64  of  the  Constitution,  the  first  clause  of  which  places  all  the 
German  troops  under  the  supreme  command  of  the  Emperor, 
and  the  second  clause  of  which  gives  to  the  Emperor  the 
appointment  of  the  highest  officers  of  each  contingent,  as 
well  as  the  appointment  of  all  officers  whose  command  con- 

1  These  Conventions,  as  elsewhere  noted,  may  be  found  in  Die  Militdr- 
gesetze  des  d.  Reiches  mit  ErldtUerungen,  I.  Neue  Bearb.,  Berlin,  1890,  pp. 
i-55  «. 


THE  ARMED   FORCES  OF  THE  EMPIRE  363 

sists  of  more  than  a  contingent,  and  of  the  commandants  of 
fortifications.  In  other  words,  while  theoretically  the  power 
of  the  ruler  to  command  his  own  contingent  still  exists  and 
persists,  yet,  in  view  of  the  restrictions  put  upon  it  in  favor 
of  the  supremacy  of  the  Kaiser,  that  power  is  not  an  inde- 
pendent one.  It  is  free  up  to  that  point  where  the  exercise 
of  it  might  militate  against  the  unity  and  efficiency  of  the  im- 
perial forces  as  a  whole. 

The  officers  of  the  various  contingents  stand  in  a  relation  of 
service  to  the  ruler  of  the  State  by  whom  they  were  commis- 
sioned. There  are  no  "imperial"  officers,  but  only  "Prus- 
sian," "Saxon,"  " Wurttemberg, "  and  "Bavarian"  officers.1 
Moreover,  the  officers  take  the  oath  of  fealty  to  the  Kontin- 
gentsherr,  swearing  loyalty  to  him,  and,  at  the  same  time, 
obedience  to  the  Kaiser.2  This  relation  of  service  begets  cer- 
tain rights  which  accrue  to  the  ruler  of  the  State  with  respect 
to  those  who  occupy  that  relation.  Among  these  rights  may 
be  cited  the  right  of  disposition,  the  granting  of  military  office 
or  command,  the  transference,  promotion,  removal,  and  dis- 

1  Laband,  IV.  p.  59,  note  i ,  says :  "  In  the  contingents  of  Hesse  and  the  two 
Mecklenburgs  the  officers  receive,  in  addition  to  the  royal  Prussian  commission, 
the  Grand  Ducal  commission,  and  so  long  as  they  belong  to  these  contingents 
they  have  exclusively  the  title  '  Grand  Ducal.' "     Hesse  Military  Convention, 
Art.  4;    Convention  with  the  two  Mecklenburgs,  1872,  Art.  9. 

2  In  Bavaria  only  in  time  of  war.    Article  7  of  the  Military  Convention  with 
Saxony — 7  February,  1867 — requires  the  Generals  at  the  head  of  commands 
to  swear  to  obey  the  orders  of  the  Bundesfeldherr,  which  oath  shall  be  in 
writing,  subscribed  in  their  own  hand,  and  sent  to  the  king  of  Prussia.     This 
is  a  direct  promise.     In  the  case  of  Prussia  and  the  contingents  annexed  to 
that  of  Prussia,  the  oath  is  taken  directly  to  the  king  of  Prussia.     In  several 
cases  the  conventions  provided  for  an  oath  to  be  taken  at  the  same  time,  "  das 
Wohl  und  Beste  des  betreffenden  Landesherren  zu  fordern,  Schaden  und 
Nachteil  von  Allerhochstdemselben  und  Seinem  Hause  und  Lande  abzu- 
wenden."     Hesse,  Art.  4;   Baden,  Art.  3,  Cl.  4;   Oldenburg,  Art.  3;   Two 
Mecklenburgs,  Art.  5 ;   Thiiringian  States,  Art.  10,  Cl.  2 ;    Braunschweig, 
Art.  5  ;  Anhalt,  Art.  10. 


364  THE  GERMAN  EMPIRE 

missal  of  such  officers  and  officials.  These  rights  may  be 
exercised  by  the  Kontingentsherr  with  respect  to  his  officers 
and  military  officials  within  the  contingent,  excluding,  of 
course,  those  officers  who,  under  Art.  64,  Cl.  2,  of  the  Constitu- 
tion, are  appointed  by  the  Kaiser.1  The  broad  powers  con- 
ferred upon  the  Kaiser  in  Art.  64,  Cl.  3,  of  the  Constitution, 
however,  materially  affect  the  rights  of  the  Kontingentsherr, 
and  might  lead  to  considerable  friction  were  it  not  for  the  pro- 
visions of  the  military  conventions.  Clause  3  of  Art.  64  reads : 
"In  the  making  of  transfers,  with  or  without  promotion,  the 
Kaiser  has  the  authority  to  make  his  selection  from  the  officers 
of  all  the  contingents,  for  the  posts  to  be  filled  by  him  in  the 
imperial  service,  whether  in  the  Prussian  army  or  in  other  con- 
tingents." Thus  the  Emperor  is  in  a  position  to  summon 
officers  from  the  service  of  the  ruler  of  the  State,  the  Kontin- 
gentsherr, into  the  service  of  the  empire,  not  only  without  the 
consent  of  the  Kontingentsherr,  but  also  against  his  will. 
This  matter  has  been  adjusted,  however,  by  various  conven- 
tions.2 

1  Laband,  IV.  p.  59.    These  rights  are  exercised  by  the  kings  of  Prussia, 
Saxony,  Wiirttemberg,  and  Bavaria. 

2  By  the  terms  of  the  treaty  with  Bavaria,  this  Art.  64  has  no  application 
there.    See  reference  to  exception  by  special  protocol  with  respect  to  certain 
officers  in  Ulm,  found  in  Laband,  IV.  p.  59,  note  2.     As  to  Wiirttemberg,  it 
is  agreed,  in  the  Mil.  Conv.  Art.  7,  Cl.  i,  and  Art.  8,  that  before  such  an 
appointment  an  understanding  will  be  had  with  the  king  of  Wiirttemberg.    In 
Saxony,  by  a  protocol  appended  to  the  Treaty  of  7  February,  1867, — the  date 
of  the  protocol  being  8  February,  1867 — it  is  agreed  that  the  words  "  or  with- 
out, "  in  what  is  now  Art.  64, Cl.  3,  of  the  Imperial  Constitution,  shall  not  apply 
to  Saxony.     As  a  result,  the  Kaiser  can  summon  officers  from  the  service  of 
the  king  of  Saxony  to  the  imperial  service  only  when  such  a  summons  carries 
with  it  a  promotion.     In  Prussia,  of  course,  with  the  combined  contingents, 
no  conflict  can  arise.     The  rulers  of  the  various  States  in  military  union 
with  Prussia  are  assured,  however,  for  the  most  part  by  conventions,  that  in 
the  matter  of  transfers  and  appointments  of  officers  and  military,  officials 
which  affect  their  contingents,  their  wishes,  so  far  as  may   be  practicable, 
shall  be  respected.    This  Laband  calls  "a  remnant  of  their  right  of  appoint- 
ment." 


THE   ARMED   FORCES   OF  THE   EMPIRE  36$ 

As  head  of  the  contingent,  the  ruler  of  the  State  has 
military  jurisdiction  over  his  troops.1  He  not  only  appoints 
the  judges  of  the  Military  High  Court  and  of  the  Military 
Courts,2  but  also  determines  by  whom  the  order  ratifying  a 
judgment  shall  be  issued.3  The  administration  of  military 
justice  (Militarjustizverwaltung)  is  carried  on  by  the  War 
Office  in  Prussia,  Saxony,  Wiirttemberg,  and  Bavaria.4 
Article  4  of  the  Law  introducing  the  system  of  Military  Courts5 
reads:  "The  competent  Kont  in  gents  herr,  in  the  meaning  of 
the  law  organizing  the  military  courts,  and  of  this  law,  is, 
so  far  as  military  conventions  do  not  provide  otherwise,  that 
ruler  whose  Ministry  of  War  exercises  the  administrative 
functions  with  respect  to  the  military  organization  in  ques- 
tion." Where,  under  the  law  organizing  the  military 
courts,  ordinances  are  to  be  issued,6  aside  from  those  which 
touch  naval  courts,  they  are  to  issue  from  the  ruler  or  from 
the  Administration  of  Military  Justice  of  his  State.7  The 
Imperial  Military  Court,8  whose  function  is  to  sit  as  a  court 
of  highest  instance,  is  competent  to  try  and  decide  questions 
of  legal  remedy  in  revision.  It  stands  in  the  same  relation 


1  This  jurisdiction  is  exercised  by  the  king  of  Prussia  for  the  Prussian 
contingent,  including  the  contingents  of  the  smaller  States  joined  with  it 
by  military  conventions. 

'  2  MJLStraf.Ger.  Ord.,  i  December,  1898  (RGBl.  p.  1189),  §93.  As  before 
remarked,  these  courts  are  not  to  be  confounded  with  the  military  courts 
erected  in  localities  where  a  state  of  war  has  been  declared.  The  Kaiser 
appoints  the  judges  (Rate)  for  the  naval  courts. 

3  Mil.Straf.Ger.  Ord.  §  418.      In  a  naval  court  the  Kaiser  decides  who 
is  to  make  the  order  ratifying  the  judgment. 

4  Mil.Str.Ger.  Ord.  §  in. 

6  Einfuhrungsgesetz  zur  Mil.Str.Ger.  Ord.  of  i  December,  1898  (RGBL 
p.  1289). 

6  See  Mil.Str.Ger.  Ord.  §§  28,  37,  65,  Cl.  2;  114. 

7  Mil.Str.Ger.  Ord.  §§  7,  8. 

8  See  Mil.Str.Ger.  Ord.  §§  71-92. 


366  THE  GERMAN   EMPIRE 

to  the  Military  Courts  that  the  Imperial  Court  stands  in  to  the 
State  Courts.1 

Possessing  disciplinary  power  and  disciplinary  jurisdiction 
with  respect  to  his  own  troops,  the  Kontingentsherr  has  also, 
logically,  the  right  of  pardon  corresponding  thereto.  This 
right  belongs  to  that  Kontingentsherr  whose  military  court  has 
passed  the  judgment.  The  pardoning  power  has  been  modi- 
fied to  some  extent  by  the  military  conventions.2 

The  administration  of  military  affairs  is  not  conducted 
by  the  Empire,  but  by  the  several  States.  There  is  no  Im- 
perial Ministry  of  War.  Each  of  the  States  possessing  con- 
tingents—  Prussia,  Bavaria,  Saxony,  and  Wurttemberg  — 
has  a  War  Ministry  whose  function  it  is  to  administer  the 
affairs  of  its  own  contingent.  In  carrying  on  the  military 
administration,  these  War  Offices  are  not  independent,  acting 
at  their  own  discretion,  but  are  limited  by  the  imperial  ordi- 
nances as  has  been  already  suggested.  This  fact  has  given 
rise  to  considerable  discussion  as  to  the  exact  legal  status  of 
the  officials  engaged  in  the  military  administration  of  the 
several  contingents.  It  is  contended,  on  the  one  side,  that 
this  military  administration  is  really  imperial  administration, 
for  which,  however,  no  imperial  board  exists.  This  is  the 
view,  for  example,  of  Meyer  s  and  Brockhaus.4  Laband,  on 

1  For  a  reply  to  Brockhaus,  who  asserts,  op.  cit.  p.  128,  that  "the  military 
courts  do  not  function  for  the  individual  States,  but  for  the  empire,"  see 
Laband,  Archiv  /.  d.  off.  Recht,  III.  p.  525. 

2  Laband,  IV.  p.  62. 

s  Meyer,  Verwaltungsrecht,  II.  p.  41.  "Aber  alle  diese  Organe  fun- 
gieren  bei  Ausubung  ihrer  Befugnisse  nicht  als  Representanten  des 
betreffenden  Einzelstaates,  sondern  als  Representanten  des  Reiches." 

4  Brockhaus,  op.  cit.  pp.  127  ff.  "In  Wahrheit  ist  die  Contingentsver- 
waltung  eine  durch  Contingentsoffiziere  und  einzelstaatliche  besorgte  Reichs- 
verwaltung."  Hanel,  Staatsr.  I  pp.  523-524,  also  says,  "Im  Sinne  der  Reichs- 
gesetzgebung  sind  denn  aber  auch  die  particularen  Kriegsministerien  —  das 
sachsische,  das  wurttembergische,  wie  das  preussische  —  Reichsbehorde" 


THE  ARMED   FORCES   OF  THE   EMPIRE  367 

the  other  hand,  maintains  that  the  Ministers  of  War  are  State 
officials,  and,  as  such,  responsible  neither  to  the  Kaiser  nor 
to  the  Reichstag,  but  to  their  own  ruler  and  to  the  Landtag 
of  their  own  State.  So  far  as  the  administration  of  the  contin- 
gents is  bound  by  the  imperial  laws,  by  the  orders  of  the 
Emperor,  by  the  resolutions  of  the  Bundesrat,  or  by  the  items 
in  the  imperial  budget,  the  responsibility  of  the  Ministries  of 
War  extends  to  seeing  that  the  administration  is  carried  out 
in  conformity  to  these  provisions.  Only  in  so  far  as  room  is 
left  for  the  exercise  of  their  own  discretion,  are  the  Ministers 
responsible  for  the  content  of  their  decrees.  In  this  respect 
the  military  administration  does  not  differ  in  principle  from 
any  other  branch  of  the  general  administrative  system.  The 
bare  fact  that  the  War  Ministers  must  observe  the  imperial 
laws  and  ordinances  and  carry  them  into  execution  does  not 
prove  with  any  degree  of  conclusiveness  that  these  officials 
are  imperial  officials.  The  other  State  Ministries  —  the 
Ministry  of  Justice,  of  Finance,  and  of  the  Interior  —  have  to 
do  the  same  thing.  Each  Minister  is  limited  in  his  power  of 
free  determination  and  in  the  scope  of  his  responsibility. 
The  difference  is  merely  one  of  degree.1 

So  far  as  the  military  officials  are  concerned,  they  are  State 
officials  to  whom  the  "  Law  respecting  Imperial  Officials  "  ap- 
plies. This  Law  of  31  March,  i873,2  §  i,  reads,  "Every 
official  appointed  by  the  Kaiser  or  bound  to  obey  the  orders 
of  the  Kaiser  under  the  provisions  of  the  Imperial  Consti- 
tution, is  an  imperial  official  within  the  meaning  of  this  law." 

1  Laband,  IV.  p.  63,  citing  in  note  i :   Denkschrifi  des  Reichskanzlers,  in 
Archiv  /.  d.  off.  Recht,  Bd.  4,  pp.  10  ff. ;  RGer.  Decis.  in  Civilsach.  9  March, 
1888,  Bd.  20,  pp.  150  ff. ;   also  Bericht  der  Rechnungskommission  des  Rtags., 
Session  of  1889-90,  No.  126,  pp.  7  ff.  and  12  ff. ;  Seydel,  in  Hirth's  Annalen, 
1875,  p.  1398;    Joel,  Hirth's  Annalen,  1878,  p.  786,  and  1888,  pp.  837  ff. ; 
Hecker,  article  "  Militarbeamte,"  in  Stengel's  Worterb.  II.  p.  97. 

2  RGBl.  p.  6 1 ;   also  in  Triepel,  p.  124. 


368  THE  GERMAN  EMPIRE 

It  cannot  be  argued  that,  by  the  wording  of  this  section,  mili- 
tary officials  are  imperial  officials  because  they  are  bound 
by  the  terms  of  the  Constitution  to  obey  the  Kaiser.  The  law 
does  not  intend  to  determine  the  legal  nature  of  their  office. 
It  only  declares  that,  so  far  as  the  provisions  of  this  law  are 
concerned,  all  officials  who  are  bound  to  obey  the  commands 
of  the  Kaiser  under  the  Imperial  Constitution  shall  be  treated 
as  if  they  were  imperial  officials.  They  are  imperial  officials 
for  the  purpose  of  this  law.  Or,  to  put  it  in  another  way, 
§  i  would  say,  "This  law  shall  find  application  not  only 
to  imperial  officials,  but  also  to  those  officials  of  the  several 
States  who,  by  the  provisions  of  the  Imperial  Constitution, 
are  bound  to  render  obedience  to  the  orders  of  the  Kaiser."  * 
By  the  express  terms  of  Art.  4  (14)  of  the  Imperial  Consti- 
tution the  military  affairs  of  the  several  States  are  subject  to 
the  supervision  of  the  Empire.  This  supervision  of  military 
affairs  falls  within  the  general  lines  of  imperial  supervision 
with  respect  to  other  matters  mentioned  in  the  same  article. 
Its  exercise  belongs  to  the  Imperial  Chancellor.2  In  order  to 
secure  uniformity  in  the  administration  of  the  various  con- 
tingents, Art.  8  of  the  Imperial  Constitution  provides  for  a 
"Committee  of  the  Bundesrat  on  Army  and  Fortifications." 
In  this  committee  Bavaria  is  assured  a  permanent  seat,  by 
special  provision  of  the  Constitution,  while,  by  the  terms  of 
the  military  conventions  with  Saxony  and  Wiirttemberg,  each 
of  these  States  is  also  guaranteed  a  seat.3  This  committee, 

1  Laband,  IV.  p.  63,  note  2,  also  I.  p.  416. 

1  Under  the  provisions  of  the  Law  of  17  March,  1878,  §  2  (RGBl.  p. 
7),  no  special  deputy  of  the  Imperial  Chancellor  can  be  appointed  for  this 
purpose,  since  the  representation  of  the  Imperial  Chancellor  by  special  deputy 
is  limited  by  the  law  to  those  single  branches  of  the  official  organization  which 
belong  to  the  "peculiar  and  immediate  administration  of  the  Empire." 
The  military  administration  does  not  fall  within  this  category. 

3  Mil.  Conv.  with  Saxony,  7  February,  1867,  Art.  2,  Cl.  3 ;  Wiirttemberg, 
3-25  November,  1870,  Art.  15,  Cl.  a. 


THE  ARMED   FORCES   OF  THE   EMPIRE  369 

then,  is  made  up  of  representatives  of  the  four  States  pos- 
sessing their  own  contingents.  By  this  means  the  curing  of 
defects  in  the  administration  of  the  contingents  and  the  set- 
tling of  differences  is  facilitated. 

So  much,  briefly,  for  the  rights  which  belong  to  the  several 
States  by  reason  of  their  military  supremacy,  so  far  as  their 
own  troops  are  concerned.  What  rights  and  powers  have 
these  various  States  with  respect  to  these  troops  which  may, 
at  any  time,  be  stationed  within  their  borders  ?  We  are  shifted 
here  to  another  viewpoint.  The  main  question  now  is  not 
the  relation  of  the  troops  to  some  contingent,  but  the  relation 
of  the  troops  to  the  territory.  Or,  to  look  at  it  from  the 
other  side,  the  territorial  rights  of  the  individual  State  with 
respect  to  the  troops,  of  whatever  contingent,  that  may  be 
located  within  the  State  bounds.  The  Imperial  Constitu- 
tion recognizes,  as  do  also  the  several  military  conventions, 
that  the  rulers  of  the  individual  States  have  certain  rights 
as  against  the  troops  located  within  their  territory,  and  that 
these  rights  are  independent  of  the  possession  by  the  ruler  of  a 
contingent  of  his  own.  They  belong  to  every  ruler,  whether 
he  has  a  contingent  or  not,  and  may  be  claimed  whether  the 
troops  are  permanently  or  only  temporarily  in  the  territory, 
no  matter  to  what  contingent  these  troops  may  belong.1 

The  rulers  of  the  several  States,  together  with  their  families, 
enjoy  the  honors  which,  in  accordance  with  the  existing  ordi- 
nances, are  due  to  the  " Landesherr."  2  It  is  evident  that  it  is 
out  of  the  question  for  a  ruler  to  assume  the  command  of  his 
own  troops  in  actual  service.  For,  by  so  doing,  he  would  in 
every  case  subject  himself  to  the  orders  of  superior  officers, 

1  Laband,  IV.  p.  65 ;   Brockhaus,  op.  cit.  p.  95. 

2  Mil.  Conv.  with  Wiirttemberg,  Art.   5 ;   Hesse,  Art.  7,  Cl.  2 ;   Baden, 
Art.  5,    Cl.    i ;   Mecklenburg,  Art.    9 ;   Oldenburg,  Art.  5,  Cl.  i ;    Braun- 
schweig, Art.  6,  Cl.  i ;    Liibeck,  §  4 ;  Bremen,  §  9 ;  Hamburg,  §  4. 

2  B 


3/0  THE  GERMAN  EMPIRE 

and  in  some  cases  —  in  the  case  of  those  rulers  whose  contri- 
bution to  the  Prussian  contingent  forms  only  a  small  fraction 
of  the  Prussian  army  —  to  the  commands  of  officers  of  subor- 
dinate rank.  Moreover,  as  officers  in  the  army,  these  rulers 
would  be  liable  to  transfer,  removal,  and  dismissal.  Such 
a  situation  would  by  no  means  comport  with  the  dignity  and 
functions  of  the  head  of  the  State.  Nevertheless,  the  various 
rulers  stand  in  a  certain  relation  to  their  own  troops  and 
other  troops  which  may  be  permanently  or  temporarily  within 
their  territory,  not  unlike  that  of  a  commanding  officer  in 
many  respects.  That  is  to  say,  the  rulers  enjoy  the  honors 
due  such  a  commanding  officer,  and  they  exercise  the  dis- 
ciplinary power  which  such  a  position  carries  with  it.  In  this 
connection  they  issue  their  orders  directly  to  the  division 
commanders.1  The  rulers  may  appoint  officers  a  la  suite? 
and  select  adjutants  who  shall  be  at  the  disposal  of  themselves 
or  of  the  princes  of  their  house.8  Moreover,  the  royal 
symbols,  or  tokens  of  sovereignty,  of  the  various  States,  may 
be  reserved  in  the  coats  of  arms  and  colors  of  the  military 
posts  and  garrisons,  so  far  as  the  federal  insignia  and  colors 
do  not  take  their  place.4 

1  Mil.  Conv.,  with  Hesse,  Art.  7,  Cl.  2 ;  Baden  and  Oldenburg,  Art.  5, 
Cl.  2}  Thiiringian  States  and  Anhalt,  Art.  8;  Braunschweig,  Art.  6;  Wai- 
deck,  Schwarzburg-Lippe,  Art.  7 ;  Schaumburg-Lippe,  Art.  6.  A  certain 
power  of  disposition  over  the  troops  is  also  granted.  This  power,  how- 
ever, concerns  only  matters  of  internal  service,  such  as  the  location  of  sen- 
tries, guards,  escorts  of  honor,  etc. 

1  The  salaries  of  these  officers  and  their  pensions  do  not  come  out  of  the 
imperial  funds. 

3  Mil.  Conv.  Hesse,  Art.  9,  together  with  Schlussprotokott,  Art.  2 ;  Meck- 
lenburg, Arts,  ii,  12;   Baden,  Art.  6,  with  SMussprotokoll,  Art.  3;   Olden- 
burg, Art.  6,  with  Schlussprotokoll,  Art.  10 ;   Thiiringian  States  and  Anhalt, 
Art.  ii ;   Lippe,  Schwarzburg,  and  Waldeck  (1877),  Art.  9;   Schaumburg- 
Lippe,  Art.  8;  Braunschweig,  Art.  7. 

4  Mil.  Conv.  with  Hesse,  Art.  3,  Cl.  6;    Mecklenburg  (1872),  Art.  9; 
Baden  and  Oldenburg,  Art.  5,  Cl.  3 ;  Braunschweig,  Art.  8,  Cl.  i ;  Schwarz- 


THE  ARMED   FORCES  OF  THE   EMPIRE  371 

In  accord  with  Art.  66,  Cl.  2,  of  the  Imperial  Constitution, 
the  rulers  of  the  several  States  "have  the  right  to  utilize,  for 
police  purposes,  not  only  their  own  troops,  but  also  to  requisi- 
tion all  other  troops  of  the  imperial  army  which  may  be  located 
in  their  territory."1  This  right  may  be  exercised  not  only 
when  the  public  peace  is  disturbed,  but  also  at  other  times  in 
order  to  insure  the  public  safety  and  maintain  the  public 
security.2  Article  66  of  the  Constitution  has  no  application 
to  Bavaria. 

At  this  point  we  are  met  by  a  question  which  cannot  be  in- 
telligently discussed,  until  we  have  taken  up,  as  briefly  as 
may  be  done  without  sacrificing  clearness,  the  subject  of  that 
general  liability  to  military  service  which  is  a  fixed  principle 
of  the  German  military  system.  "Every  German  is  under 
obligation  to  perform  military  service,  and  in  the  discharge  of 
this  duty  no  substitute  will  be  accepted."  3  In  other  words, 
every  German  subject,  his  capacity  for  such  service  being 

burg,  Lippe,  and  Waldeck  (1877)  Art.  7,  Cl.  3;  Schaumburg-Lippe,  Art. 
6;  Liibeck  and  Hamburg,  §  4,  c;  Bremen,  §  6. 

1  The  question  has  arisen  as  to  whether  a  distinction  is  to  be  made  as  to 
the  use  of  the  words  "utilize"  and  "requisition"  in  this  Article.     Brock- 
haus,  op.  cit.  pp.  107,  108,  says,  No.     See,  however,  Laband,  in  Archiv  /.  d. 
off.  Recht,  Bd.  III.  pp.  515  ff. 

2  Laband,  IV.  p.  66.     See  also  Mil.  Conv.  with  Hesse,  Art.  13 ;  Baden, 
Art.  13;   Oldenburg,  Art.  16;  Braunschweig,  Art.  8,  Cl.  2;  Waldeck,  Art. 
7,  Cl.  4;   Liibeck,  §  4;   Hamburg,  §§  5,  7;   Bremen,  §§  10-12.     The  con- 
ditions under  which  the  troops  may  be  called  upon  to  preserve  the  public 
peace  and  safety  are  laid  down  in  the  Prussian  Ordinance  of  17  August, 
1835  (Pr.  G.  S.  p.  170),  and  in  the  Prussian  Law  of  20  March,  1837  (Pr. 
G.  S.  p.  60).     These  laws  have  also  been  introduced  into  Wiirttemberg  by 
the  Decree  of  27  May,   1878  (Reg.  Bl.  p.  125).     In  Bavaria  the  matter  is 
regulated  by  the  Bavarian  Law  of  4  May,  1851  (GBl.  p.  9),  and  the  Garri- 
son Instructions  of  5  April,  1855.     See  Van  Calker,  Das  Recht  des  Militars 
zum  administrativen   Waffengebrauch,  Miinchen,  1888.      In  regard  to  the 
rendering  of  military  assistance  in  case  of  public  necessity,  see  also  Kabi- 
netsordre  of  6  January,  1899  (Armeeord.  bl.  p.  28). 

3  RVerf,  Art,  57, 


3/2  THE  GERMAN  EMPIRE 

assumed,  must  serve  for  a  specified  time  in  the  armed  forces,  if 
called  upon  for  such  service,  and  this  service,  if  demanded, 
must  be  rendered  in  his  own  person.  This  principle  applies 
both  to  the  army  and  navy. 

The  duty  to  perform  military  service,  or,  to  translate  the 
German  word  "Wehrpflicht,"  more  literally,  the  duty  to 
defend  his  country,  is  based  upon  citizenship,  and  is  the 
correlate  of  the  right  which  each  citizen  has  to  claim  the  pro- 
tection of  the  State.  In  Art.  57  of  the  Imperial  Constitution, 
quoted  above,  an  implicit  recognition  is  given  to  the  general 
sovereign  right  of  every  State  to  demand  from  its  citizens 
the  performance  of  personal  military  service.1  This  covers 
not  only  the  active  service  of  those  capable  of  bearing  arms, 
but,  in  the  case  of  those  who  are  not  able  to  bear  arms,  the 
performance  of  such  services  connected  with  the  military  as 
may  fall  within  the  competence  of  these  persons  and  may  be 
adapted  to  their  civil  calling.2 

While  the  duty  to  perform  military  service  is  a  general 

1  Laband,  IV.  p.  126,  claims  that  the  system  of  "general  military  duty" 
is  distinguished  juristically  from  the  "  enlistment  system,"  in  that  the  former 
recognizes  the  sovereign  right  of  the  State  to  demand  personal  military 
service  from  its  subjects,  while  the  latter  does  not  recognize  the  right,  or,  at 
least,  does  not  put  it  into  execution,  but  secures  the  performance  of  military 
service  through  contract.  It  can  scarcely  be  argued,  however,  that  because 
a  right  is  not  exercised,  the  existence  of  it  is  either  denied  or  overlooked. 
Nor  does  it  follow,  because  a  State  chooses  to  employ  the  method  of  enlist- 
ment, or  contract,  that  it  neither  possesses  nor  claims  the  right  of  demanding 
personal  military  service  from  every  able-bodied  citizen.  As  a  matter  of 
fact,  the  right  of  "draft"  or  "conscription"  is  held  by  those  States  which 
employ  the  contract  system,  but  the  exercise  of  the  right  is  reserved  only  for 
seasons  of  pressing  need.  In  both  systems  the  basic  principle  is  the  duty  of 
every  competent  citizen  to  defend  his  country.  Such  juristic  difference  as 
may  exist  is  formal  rather  than  material. 

1  Law  of  9  November,  1867  (BGBl.  p.  131),  1 1,  Cl.  2.  This  would  include 
those  capable  of  doing  office  work  or  manual  labor  of  various  kinds.  Such 
persons  may  be  summoned  to  this  service,  and  their  whole  time  claimed, 
under  the  law  above  cited. 


THE   ARMED   FORCES   OF  THE   EMPIRE  373 

one,  the  specific  content  of  that  duty  is  determined  by  law. 
"The  governmental  authorities  may  demand  from  those 
who  are  liable  to  military  duty  no  greater  measure  of  service 
than  the  law  decrees,  and  no  grounds  for  exemption  from 
military  service  exist,  other  than  those  recognized  by  law."  * 
The  Law  of  9  November,  1867,  §  i,  exempts  from  the 
general  liability  to  military  service :  "  (a)  the  members  of 
the  ruling  houses;  (b)  the  members  of  the  mediatized 
houses,  those  who  formerly  belonged  to  the  Reichsst&nde, 
and  those  houses  to  whom  such  exemption  is  secured  by 
treaty  or  through  special  legislation."2 

The  liability  to  military  service  is  based  upon  citizenship. 
It  affects  citizens  only,  therefore,  and  vanishes  when  citizen- 
ship ceases.  Foreigners  may  be  admitted  to  military  service, 
but  are  never  subjected  to  liability  to  it.  Their  entry  into 
the  armed  forces  of  the  Empire,  therefore,  is  always  voluntary, 
never  compulsory.3  The  liability  of  every  German  to  military 
service  begins  with  the  completion  of  the  seventeenth  year 
of  his  age,  and  ends  with  the  completion  of  the  forty-fifth 
year  of  his  age.4 

Article  59  of  the  Imperial  Constitution  reads  as  follows : 
"Every  German  capable  of  bearing  arms  shall  serve  for 


1  Laband,  IV.  p.  127.  In  addition  to  the  Law  of  9  November,  and  Art.  59 
of  the  RVerf.,  see  also  Law  of  n  February,  1888  (RGBl.  p.  u);  Law  of 
3  August,  1893  (RGBl.  p.  233);  Law  of  25  March,  1899  (RGBl.  p.  213). 

3  With  respect  to  those  mentioned  under  (b),  see  discussion  by  Seydel, 
Comm.  2  Aufl.,  pp.  315  ff.  By  the  Law  of  23  January,  1872  (RGBl.  p.  31), 
§  2;  Law  of  n  February,  1888,  Art.  II.  §  34,  Cl.  i,  an  exemption  is 
also  granted  to  those  citizens  of  Alsace-Lorraine  born  before  1851,  and  by 
the  Law  of  15  December,  1890  (RGBl.  p.  207),  §  3,  persons  native  of  the 
island  of  Heligoland,  and  their  children  born  before  n  August,  1890,  are 
also  freed  from  liability  to  military  service. 

3  With  reference  to  permission  to  emigrate  and  the  questions  arising  with 
respect  to  the  effects  of  such  emigration,  see  Laband,  IV.  pp.  129  ff. 

4  Law  of  ii  February,  1888,  §  24. 


374  THE  GERMAN  EMPIRE 

seven  years  in  the  standing  army,  —  as  a  rule  from  the  end 
of  his  twentieth  to  the  beginning  of  his  twenty-eighth  year. 
The  following  five  years  he  shall  belong  to  the  first  reserve 
of  the  land  defence,  and  then,  up  to  the  3ist  March  of 
that  calendar  year  in  which  he  shall  complete  the  thirty- 
ninth  year  of  his  life,  to  the  second  reserve  of  the  land 
defence.  During  the  period  of  service  in  the  standing 
army,  cavalrymen  and  mounted  artillerymen  are  pledged  to 
uninterrupted  service  with  the  colors  the  first  three  years, 
all  others  the  first  two  years."  l  Prior  to  i  April,  1905,  the 
period  of  service  was  so  divided  that  each  German  capable 
of  bearing  arms  served  the  first  three  years  with  the  colors, 
the  last  four  years  with  the  reserves.  By  the  Law  of 
3  August,  1893,  the  period  of  service  with  the  colors  was 
reduced,  between  the  dates  i  October,  1893,  and  31  March, 
1899,  to  two  years.  The  Law  of  25  March,  i899,2  ex- 
tended the  operation  of  the  Law  of  3  August,  1893,  to 
31  March,  1904.  A  further  extension,  until  31  March, 
1905,  was  had  through  the  Law  of  22  February,  1904^ 
when  the  matter  was  definitely  fixed  by  constitutional 
amendment,  by  the  Law  of  15  April,  1905. 

In  declaring  every  German  liable  to  military  service, 
Art.  57  of  the  Imperial  Constitution  leaves  one  very  important 
question  wholly  unanswered.  It  does  not  state  whether 
this  "Wehrpflicht"  is  a  duty  owed  to  the  Empire  or  to  one 
of  the  States  of  the  Empire.  It  is  content  with  merely  laying 
down  a  principle  of  general  obligation  to  do  military  service. 
This  failure  of  an  explicit  pronouncement  on  the  part  of  the 
Constitution  has  led  to  considerable  debate  between  the  two 
schools  of  thought  in  Germany  with  respect  to  the  legal 
nature  of  the  federal  army.  Those  who  contend  that  there 

1  As  amended  by  the  Law  of  15  April  1905  (RGBl.  Nr.  16). 

2  RGBl.  p.  213.  *  Ibid.  p.  65. 


THE  ARMED    FORCES  OF  THE  EMPIRE  375 

is  no  imperial  army  in  the  strict  sense  of  that  phrase,  maintain 
that  the  obligation  to  military  service  is  due  to  the  individual 
State  to  which  the  person  in  question  belongs,  and  to  the 
ruler  of  that  State  as  representing  in  himself,  according  to  the 
general  principle  of  German  constitutional  law,  the  power 
of  the  State.  They  hold  that  the  particular  duty  to  render 
military  service  is  simply  one  side  of  the  broad,  comprehensive 
duty  of  citizenship;  that  the  very  status  of  "subject"  carries 
with  it,  as  part  of  the  "  Untertanenpfticht"  or  general  obliga- 
tion which  a  subject  owes  to  his  sovereign,  the  duty  to  defend 
the  State  and  its  ruler.  Under  the  German  system  of  govern- 
ment, the  primary  relation  of  every  German  is  to  the  State 
and  not  to  the  Empire.  Citizenship  is  primarily  a  relation 
between  the  individual  and  his  own  particular  State.  He 
owes,  therefore,  his  allegiance  first  and  foremost  to  his  own 
State  and  its  ruler.  The  wording  of  Art.  3,  Cl.  5,  of  the 
Imperial  Constitution  expressly  recognizes  this  fact,  "What- 
ever is  necessary  so  far  as  the  fulfilment  of  the  military 
obligation  with  respect  to  the  home  State  [H eimatstaat] 
is  concerned,  will  be  regulated  by  imperial  legislation  [im 
Wege  der  Reichsgesetzgebung]."  It  is  objected,  by  those  who 
insist  that  the  German  army  is  a  legal  unit,  that  the  very 
fact  that  the  matter  of  military  obligation  is  regulated  by 
imperial  legislation  is  proof  conclusive  that  the  obligation  is 
due  the  Empire  rather  than  to  the  home  State.  But  it  can 
hardly  be  successfully  maintained  that  the  mere  fact  of  im- 
perial regulation  is  in  itself  sufficient  to  determine  the  funda- 
mental character  of  the  relation  under  consideration.  The 
material  content  of  the  law,  rather  than  the  bare  fact  of  it, 
must  be  decisive. 

One  of  the  rights  guaranteed  to  every  German  is  the  right 
of  migration,  that  is,  the  right  freely  to  remove  from  one  State 
to  another,  from  one  part  of  the  Empire  to  another  part. 


376  THE  GERMAN  EMPIRE 

If,  now,  the  military  obligation  of  every  German  is  primarily 
an  obligation  toward  his  home  State,  how  does  the  fulfilment 
of  that  obligation  affect  the  right  of  migration,  and  how  is 
the  right  of  the  State  to  the  military  service  of  its  subjects 
affected  by  the  law  of  free  migration  ?  The  Law  relating 
to  Military  Service,  of  9  November,  I867,1  §  17,  Cl.  i, 
says,  "Every  North  German  is  called  upon  to  fulfil  his 
military  service  in  that  State  in  which  he  resides  at  the 
time  when  he  reaches  the  age  of  liability  to  military  ser- 
vice, or  into  which  he  removes  before  a  final  decision  is  had 
as  to  his  obligation  to  active  service."  Further,  this  same 
law  permits  volunteers  (Freiwillige)  to  choose  the  division 
of  troops  in  which  they  will  serve.2  It  is  possible,  therefore, 
that  the  citizen  of  one  State  may  perform  his  military 
duty  in  the  contingent  of  another  State,  or  in  the  navy. 
Nevertheless  the  obligation  of  every  German  is  still  an 
obligation  toward  his  own  home  State.  It  does  not 
change  the  nature  of  this  obligation  that  the  fulfilment 
of  it  takes  place  outside  the  borders  of  the  State.  Service 
in  another  contingent  or  in  the  navy  is  simply  a  mode  of 
meeting  that  obligation,  permitted  by  imperial  law.3  By 
performing  his  military  service  in  another  contingent  he 
fulfils  his  duty  to  his  own  State.  And  this  fact  is  recognized 
by  both  States  and  by  the  Empire.  The  same  legal  status 
exists  between  the  States  of  the  Empire  that  existed 
by  treaty  before  the  founding  of  the  Empire,  between  the 
North  German  Confederation  and  Baden  and  Hesse.  Ac- 
cording to  Art.  2  of  the  treaty  of  25  May,  1869,  between  the 


1  BGBl.  p.  10.    Also  Triepel,  pp.  55  ff.      Cf.  Law  of  2  May,  1874  (RGBl. 
p.  45;  Triepel,  162  ff.)»  §  12. 

2  Law  of  9  November,  1867,  §  17,  Cl.  2.     For  a  definition  of  "volun- 
teers," see  §§  10,  ii  of  the  Law. 

3  See  Laband,  IV.  p.  67. 


THE  ARMED  FORCES  OF  THE  EMPIRE  377 

Bund  and  Baden,1  "the  citizens  of  Baden  are  free  to  perform 
their  military  service  in  the  North  German  Confederation, 
and  the  citizens  of  the  latter  in  the  Grand  Duchy  of  Baden, 
with  the  effect  that  thereby  they  satisfy  their  obligation 
with  respect  to  active  military  service  to  their  own  State." 
The  position  of  Brockhaus,  therefore,  is  hardly  a  fair  one 
when  he  maintains  that,  "since  the  obligation  to  military 
service  cannot  be  possibly  due  to  a  State  in  which  a  man  has 
his  domicile  but  of  which  he  is  not  a  citizen,  and  since,  further, 
according  to  the  terms  of  the  imperial  law,  this  obligation 
is  not  to  be  fulfilled  toward  his  home  State,  only  one  subject 
remains  toward  which  this  obligation  can  be  directed,  — 
the  Empire." 2  Brockhaus  bases  his  conclusion  upon  Art.  3, 
Cl.  5,  of  the  Constitution,  which  provides  for  regulating 
the  fulfilment  of  military  duty  through  imperial  legislation. 
But  Brockhaus  seems  to  miss  the  main  point  of  the  article.3 
It  is  true  that  no  military  obligation  is  due  a  foreign  State, 
but  it  is  not  true  that  military  service  rendered  in  another 
State  is  not,  under  the  law,  the  fulfilment  of  an  obligation  to 
the  home  State.  Art.  3,  Cl.  5,  of  the  Constitution  implicitly 
recognizes  two  great  rights:  the  right  of  the  State  to  the 
military  service  of  its  citizens,  and  the  right  of  the  individual 
German  to  free  migration;  and  because  it  recognizes  the 
existence  of  these  two  rights  side  by  side,  it  provides  for  an 
adjustment  of  them  through  imperial  legislation  —  the  only 
way  by  which  such  an  adjustment  could  be  properly  made. 
Logically,  the  right  of  the  individual  State  to  the  fulfilment 
of  military  duty  on  the  part  of  its  subjects  can  be  satisfied  only 
by  a  direct  service  to  the  State  itself.  On  the  other  hand, 
the  right  of  the  individual  to  free  migration  gives  the  subjects 

1  BGBl.  p.  676.     See  in  this  connection  Bornhak,  Preuss,  Staatsrecht, 
III.  p.  37. 

2  Brockhaus,  op.  cit.  p.  113.  *  See  also  Giimbel,  op.  tit.  p.  149. 


3/8  THE  GERMAN  EMPIRE 

of  the  State  the  liberty  of  removing  beyond  the  jurisdiction 
and  out  of  the  territory  of  the  State.  The  imperial  law  makes 
an  equation  between  the  several  States  in  this  regard  by 
declaring  that  service  rendered  in  any  body  of  troops  in  the 
Empire  shall  avail  as  service  rendered  to  the  home  State. 
This  is  facilitated  by  the  fact  that  the  various  contingents 
are  wholly  similar  institutions.  It  is  not  to  be  doubted, 
from  a  juristic  standpoint,  that  the  fulfilment  of  an  obligation 
due  to  one  party  by  service  rendered  to  another  party  effects 
no  change  in  the  legal  relations  between  the  debtor  and 
creditor.  "If,"  says  Seydel,  "I  am  permitted  to  discharge 
my  indebtedness  to  A  by  payment  to  5,  I  do  not  become 
debtor  to  J5,  much  less  to  C." l  If  it  does  not  seem  desirable 
to  deal  with  a  matter  of  constitutional  law  in  terms  of  private 
law,  one  may  find  an  analogy  in  the  obligation  to  attend 
school  — the  "  Schulpflicht." 2  The  duty  to  attend  school 
is  an  obligation  unquestionably  due  the  home  State.  But 
this  obligation  can  be  fulfilled  by  attendance  upon  school 
in  any  other  State  in  the  Empire.  It  will  hardly  be  main- 
tained, however,  that  for  this  reason  the  obligation  to  attend 
school  is  a  duty  toward  the  Empire  rather  than  toward  the 
home  State,  since  it  cannot  possibly  be  a  duty  owed  to  another 
State  and  as  a  matter  of  fact  is  not  fulfilled  in  the  home 
State  itself.  Whoever  attends  school  in  another  State 
fulfils  his  obligation  as  a  citizen  toward  his  own  State.  The 
analogy  holds  with  respect  to  the  military  obligation.  More- 
over, that  this  idea  with  respect  to  the  military  obligation 
lies  at  the  bottom  of  the  imperial  law  regulating  the  matter 
is  shown  by  a  certain  peculiar  practice  which  has  developed 
between  the  various  contingents.  If  the  citizens  of  one 

1  Seydel,  Comm.  p.  313. 

2  See  Laband,  Archiv  jttr  off.  Recht,  III.  pp.  519  ff.    Also  Giimbel,  op. 
cit.  p.  149. 


THE  ARMED   FORCES  OF  THE  EMPIRE  3/9 

State  serve  in  the  contingent  of  another  State,  it  is  plain 
that  the  first  State  receives  services  due  the  second.  In  a 
certain  sense  it  receives  this  service  to  the  account  of  the 
second  State  and  is  therefore  bound  to  render  an  equivalent, 
i.e.,  to  give  as  many  of  its  citizens  to  serve  in  the  contingent  of 
the  second  State  as  it  has  received  citizens  from  that  State. 
It  was  the  custom,  therefore,  for  those  States  which  had 
separate  contingents  to  balance  accounts  by  handing  over, 
each  to  the  other,  a  sufficient  number  of  recruits  to  equalize 
their  differences.  This  proceeding  was  originally  founded 
upon  an  agreement  between  the  States,  but  was  later  sanc- 
tioned by  the  Law  of  2  May,  1874,  §  9,  Cl.  4.  In  order  to 
meet  the  changed  conditions  incident  upon  the  annexation 
of  the  smaller  contingents  by  Prussia,  this  §  9  was  replaced 
by  Art.  n,  §  i,  of  the  Law  of  26  May,  1893  (RGBl. 
p.  185 ;  Triepel,  260).  Under  the  provisions  of  this  section, 
such  an  accounting  takes  place  no  longer  between  Prussia 
and  the  States  whose  contingents  have  been  absorbed 
in  the  Prussian  contingent,  but  it  does  take  place  between 
the  States  which  still  retain  their  independent  troops. 
The  matter  is  adjusted  by  the  Ministers  of  War  of  these 
States. 

That  the  legal  obligation  to  military  service  is  a  duty  toward 
the  home  State  is  shown  very  clearly  and  decisively  in  the 
"military  oath"  - " Fahneneid."  This  oath  is  sworn  to 
the  Landesherr,  to  the  ruler  of  the  State,  not  to  the  Kaiser. 
The  Fahneneid  does  not  create  the  duty  to  render  military 
service,  but  it  does  give  to  that  obligation  its  most  solemn 
and  most  personal  expression.  In  taking  the  oath,  each 
man  swears  to  his  ruler  "to  serve  him  as  a  true  soldier." 
Even  where  the  ruler  is  not  at  the  same  time  the  head  of  the 
contingent,  it  is  to  the  ruler,  not  to  the  Kontingentsherr, 
that  the  oath  is  taken.  Prussian  citizens  who  serve  in  a 


380  THE  GERMAN  EMPIRE 

Bavarian  or  Saxon  or  Wtirttemberg  contingent  take  the  oath 
to  the  king  of  Prussia.1  By  the  provisions  of  Art.  64,  Cl.  i, 
of  the  Imperial  Constitution,  an  obligation  to  obey  implicitly 
the  orders  of  the  Kaiser  is  taken  at  the  same  time  the  oath  of 
fidelity  to  the  Landesherr  is  sworn.  This  obligation  is 
included  in  the  military  oath.  It  is  an  obligation  to  obey 
the  Kaiser,  not  as  Kaiser,  but  as  commander-in-chief  of  the 
German  troops.2  Those  officers  who  are  appointed  by 
the  Kaiser  take  the  oath  directly  to  him. 


1  The  oath  of  fidelity  is  taken  also  to  those  rulers  who  do  not  exercise  the 
rights  of  Kontingentsherren,  no  matter  in  which  troops  the  military  service 
may  be  rendered.     The  various  military  conventions  have  express  stipula- 
tions on  this  point.     See  Hesse,  Art.  3,  Cl.  3 ;   Baden,  Art.  3,  Cl.  3 ;   Olden- 
burg, Art.  2,  Cl.  2;  Thiiringian  States,  Art.  6;  Anhalt,  Schwarzburg,  Lippe, 
Waldeck,  Art.  6;    Braunschweig  and  Schaumburg-Lippe,  Art.  5;    Lubeck, 
§  2 ;    Hamburg,  §  2 ;    Bremen,  §  3.      The  citizens  of  Alsace-Lorraine,  no 
matter  in  what  contingent  they  may  serve,  take  the  oath  of  fidelity  to  the 
Kaiser  alone.     Laband,  IV.  p.  70,  citing   Rescript  of  28   May,  1872,  and 
Kabinetordre  of  4  December,  1878. 

2  In  the  Constitution  of  the  North  German  Confederation  the  word  is 
"  Bundesjeldherr ."     Meyer,    Annalen,    1880,   p.  345;    Brockhaus,  op.  cit. 
pp.  117  ff. ;   and  Hanel,  Staatsr.  I.  p.  507,  in  support  of  their  theory  that 
the  German  army  is  legally  a  unitary  army,  hold  that  in  taking  the  military 
oath  fidelity  is  sworn  to  the  Landesherr,  but  obedience  is  sworn  to  the  Kaiser, 
and  that  this  oath  of  obedience  alone  has  any  considerable  juristic  content. 
They  maintain  that  the  oath  of  fidelity  to  the  Landherr  is  nothing  more  than 
a  wholly  superfluous  emphasizing  or  fortifying  of  the  loyalty  due  him  from 
every  subject,  a  loyalty  which  is  constant  and  is  not  impaired  by  entry  into 
active  military  service.     It  is  a  general  loyalty  which  continues  during  the 
period  of  military  service.     To  this  position  Laband  objects  on  the  ground 
that  it  robs  the  military  oath  of  loyalty  or  fidelity  to  the  Landherr  of  its  con- 
tent.    In  taking  this  oath  the  citizen  does  not  solemnly  promise  his  Landes- 
herr to  be  a  true  subject  to  him,  —  that  were  indeed  superfluous  in  the 
extreme,  —  but  he  does  promise  to  "  serve  him  as  a  soldier  true."     In  other 
words,  he  swears  to  him  true  soldier  service.     This  service  he  renders  his 
Landesherr  in  whatever  body  of  troops  he  may  find  himself.     See  Laband, 
IV.  p.  69,  note  3,  also  in  Archiv  j.  d.  off.  Recht,  Bd.  III.  pp.  552  ff. ; .  Hecker, 
article  "  Fahneneid"  in  Stengel's  Worterbuch,  I.  p.  375;    Gumbel,  op.  cit. 
p.  151;  also  Seydel,  Comm.  pp.  368  ff. 


THE  ARMED   FORCES   OF  THE   EMPIRE  381 

It  is  stipulated  in  all  the  military  conventions  that  the 
soldiers  shall  wear  the  military  cockade  of  their  own  State, 
and  in  case  they  serve  in  contingents  other  than  that  of  their 
home  State,  the  cockade  of  the  home  State  shall  be  worn 
beside  that  of  the  Kontingentsherr}-  The  relation  of  personal 
supremacy  in  which  the  Landesherr  stands  to  his  subjects, 
aside  from  the  rights  which  grow  out  of  his  relation  to  his 
soldiery  as  Kontingentsherr,  is  seen  in  his  pardoning 
power.  The  right  to  pardon  is  the  correlate  of  the  right  of 
jurisdiction.  In  military  matters  it  belongs  logically  to  the 
Kontingentsherr.  Assurances  have  been  given,  however, 
in  the  various  military  conventions,  that  in  the  exercise  of 
this  power  by  the  King  of  Prussia,  the  wishes  of  the  Landes- 
herren  with  respect  to  their  subjects  will  be  deferred  to  as 
far  as  possible.2  In  cases  where  a  military  judgment  has 
been  rendered  upon  crimes  which  are  not  military  the  right  of 
pardoning  their  subjects  has  been  reserved  to  certain  of  the 
rulers.3 

MILITARY  FORTIFICATIONS 

As  Laband  observes,  "The  legal  regulations  touching  the 
fortifications  and  naval  ports  situate  within  the  federal  terri- 
tory have  a  peculiar  character,  from  the  fact  that  not  only 
the  principles  of  military  organization,  but  also  those  of 
territorial  supremacy,  come  into  consideration,  and  that  the 

1  Mil.   Conv.   with    Hesse,    Art.   3,    Cl.    5 ;    Oldenburg,    Art.   2,   Cl.  2 ; 
Thiiringian  States,  Art.  7;   Braunschweig,  Art.  2,  Cl.  5;   Waldeck,  Art.  i, 
Cl.  2;   Schwarzburg,  Art.  6;   Lippe,  Art.  6;   Schaumburg    Art.  5;  Liibeck, 
§  2,  Cl.  3;   Hamburg,  §  2;   Bremen,  §  3. 

2  Mil.  Conv.   with  Baden,   Art.   14;  Mecklenburg,   Art.  6;   Oldenburg, 
Art.  17;    Thiiringian  States,  Art.  8;    Anhalt,  Art.  8;    Schaumburg,  Art.  6; 
Lippe,  Art.  7 ;   Schwarzburg,  Art.  7 ;  Waldeck,  Art.  7 ;   Braunschweig,  Art. 
6,  Cl.  4. 

3  Mil.  Conv.  with  Baden,  Schlussprotokoll,  8;   Oldenburg,  Schlussproto- 
koll,  8.    See  also  Mecklenburg  (1868),  Art.  6,  Cl.  3 ;  and  Hesse,  Art.  14,  Cl.  3. 


382  THE  GERMAN   EMPIRE 

legal  relations  between  the  Empire  and  the  several  States 
are  thereby  defined."  In  entering  into  the  Union,  the  indi- 
vidual States  have  retained  all  their  territorial  rights  and  su- 
premacy, save  such  as  have  been  explicitly  conceded  to  the 
Empire  by  the  terms  of  the  Constitution  or  withdrawn  from 
the  States  by  legislation  within  the  competence  conferred  by 
that  instrument.  The  erection  of  the  Empire  and  the  adop- 
tion of  the  Imperial  Constitution,  together  with  the  organiza- 
tion of  the  imperial  means  of  defence  and  offence,  did  not 
vest  in  the  Empire  such  immediate  territorial  rights  in  the 
fortifications  and  naval  ports  that  the  territorial  rights  of 
the  several  States  therein  were  annihilated.  The  fortifica- 
tions and  naval  ports  are,  therefore,  an  integral  part  of  the 
territory  of  the  several  States,  and  the  Empire  is  not  em- 
powered to  withdraw  them  from  the  territorial  sovereignty 
of  those  States.1 

Article  65  of  the  Constitution  declares  that  "the  right  to 
construct  fortifications  within  federal  territory  shall  belong  to 
the  Kaiser,  who,  so  far  as  the  ordinary  grant  does  not  provide 
the  necessary  means,  shall  apply  for  an  appropriation  in 
accordance  with  Sec.  XII." 2  The  Kaiser  therefore  has  the 
right  under  the  Constitution  to  erect  fortifications  within  the 
federal  territory,  or  to  enlarge  or  strengthen  those  already  in 
existence,  as  may  be  necessary,  limited  only  by  the  constitu- 
tional requirement  that  the  financial  means  for  such  under- 
takings be  granted  by  imperial  legislation.  The  exercise 
of  this  right  is  in  no  wise  dependent  upon  the  consent 
of  the  State  in  which  such  fortifications  are  to  be  con- 
structed, nor  may  that  State  use  its  own  territorial  suprem- 

1  Laband,  IV.  p.  72. 

2  Sec.  XII  of  the  RVerf.  deals  with  the  imperial  finances.    The  words 
"ordinary  grant"  refer  to  the  temporary  provision  in  Art.  62,  Cl.  i.     See 
also  Art.  71,  Cl.  2.     It  has  no  practical  meaning  now. 


THE  ARMED   FORCES  OF  THE  EMPIRE  383 

acy  to  hinder  or  to  prevent,  by  means  of  local  regulation, 
the  carrying  out  of  such  construction,  modification,  or 
enlargement.1 

The  possession  of  a  right  carries  with  it  the  subsidiary  right 
to  employ  such  means  as  may  be  necessary  to  make  that  right 
effective.  The  right  to  construct  fortifications  and  to  enlarge 
or  to  strengthen  those  already  in  existence  involves  the  further 
right  to  apply  the  means  necessary  to  secure  the  end  sought, 
within  the  limits  of  the  original  grant  of  power.  In  exercising 
the  right  conceded  to  him  by  the  Constitution,  therefore,  the 
Kaiser  has  the  right  also  to  go  so  far  as  to  expropriate  land,2 
and  to  restrict  the  rights  of  disposition  with  respect  to  land 
within  a  certain  radius  of  the  fortifications.3  Nor  may  any 
State  thwart  the  exercise  of  this  right  on  the  part  of  the 
Kaiser  to  erect  fortifications  or  to  modify  those  already 
erected,  by  such  interference,  through  the  exercise  of  its 
own  territorial  powers,  as  may  directly  or  indirectly  impair, 
or  otherwise  disadvantageously  affect,  the  value  or  capacity 

1  Bavaria  and  Wiirttemberg  occupy  a  peculiar  position  in  this  regard. 
By  the  terms  of  the  November  Treaty,  Art.  67  of  the  Imperial  Constitution  does 
not  apply  to  Bavaria.  In  place  of  Art.  65,  it  is  provided,  "Die  Anlage  von 
neuen  Befestigungen  auf  bayerischem  Gebiete  in  Interesse  der  gesammt- 
deutschen  Vertheidigung  wird  Bayern  im  Wege  jeweiliger  Vereinbarung 
zugestehen "  (Treaty,  III.  §  5,  V.  Cl.  i).  In  other  words,  when  the 
consent  of  Bavaria  is  withheld,  the  erection  of  fortifications  must  wait.  Nor 
is  Bavaria  denied  the  right  to  erect  fortifications  within  her  own  territory. 
As  a  matter  of  fact,  however,  this  is  a  matter  of  no  practical  consequence. 
Seydel,  Comm.  p.  373.  So  far  as  Wiirttemberg  is  concerned,  it  is  agreed  in 
the  Military  Convention,  Art.  7,  that  the  right  of  the  Kaiser  to  erect  fortifica- 
tions within  the  territory  of  that  State  shall  be  exercised  after  the  Kaiser  has 
previously  obtained  the  consent  of  the  king  of  Wiirttemberg.  See  Laband, 
IV.  p.  73;  Seydel,  Comm.  p.  374. 

1  The  expropriation  of  land  may  be  regulated  by  imperial  law.  Where 
this  is  not  done,  i.e.  where  there  is  no  special  imperial  regulation  of  the 
matter,  the  laws  of  the  State  governing  expropriation  shall  apply.  Laband, 
IV.  p.  72,  note  2 ;  Seydel,  Comm.  p.  372 ;  Giimbel,  op.  cit.  p.  190. 

3  See  Rayongesetz  of  21  December,  1871  (RGBl.  p.  459;    Triepel,  p.  117). 


384  THE  GERMAN  EMPIRE 

of  those  fortifications  as  means  of  defence.1  No  State  may 
erect  fortifications  of  its  own,  thus  disturbing  the  unity  of 
the  defensive  system  of  the  Empire,  even  though  the  expenses 
for  such  construction  are  borne  by  the  State.  Where, 
however,  the  gates  and  bridges  approaching  fortified  places 
of  the  Empire,  and  designed  for  public  travel,  become  in  the 
course  of  time  inadequate  for  such  traffic,  the  Communes 
affected  have  the  right  to  demand  that  these  gates  and 
bridges,  so  far  as  the  interests  of  fortification  do  not  op- 
pose it,  be  widened  at  the  expense  of  the  Empire.  The 
decision  as  to  whether  such  alteration  is  necessary,  and 
if  so,  to  what  extent  it  shall  be  carried  out,  is  made,  in 
the  last  instance,  by  the  Committees  of  the  Bundesrat  for 
Trade  and  Commerce  and  on  Army  and  Fortifications, 
acting  jointly.2 

The  military  administration  of  the  fortifications  and  naval 
ports  belongs  to  the  Kaiser.  He  may  determine  the  kind 
and  number  of  the  garrisons,  and  in  the  exercise  of  his  right 
of  "dislocation"  may  select  the  garrisons  from  any  and  all 
contingents,  without  respect  to  the  State  in  which  the  forti- 
fication to  be  occupied  is  located.  This  right  is  not  restricted 
by  the  military  conventions.  The  Kaiser's  general  right 
of  supervision  and  inspection,  with  the  removal  of  defects 
found  as  a  result  of  such  inspection,  extends  not  only  to  the 
troops  within  the  fortifications,  but  also  to  all  equipment 
and  arrangement  which  may  in  any  wise  affect  the  military 

1  No  State,  e.g.,  may  reduce  the  defensive  efficiency  of  a  fortification  by 
changing  a  water-course,  or  diverting  lines  of  railway  or  canals  in  its  vicinity, 
even  where  these  may  not  fall  within  the  immediate  "Rayon"  of  the  fortifi- 
cation.    Laband,  IV.  p.  73. 

2  Law  of  30  May,  1873  (RGBl.  p.  124),  Art.  IV.  Cl.  2.    These  provisions  do 
not  apply  to  Bavaria,  since  the  fortifications  in  Bavaria  are  not  "imperial 
fortifications,"  but  "state  fortifications,"  and  hence  do  not  fall  within  the 
terms  of  the  law. 


THE  ARMED  FORCES  OF  THE  EMPIRE  385 

effectiveness  of  the  fortification.    The  commandants  of  the 
various  fortifications  are  appointed  by  the  Kaiser.1 

By  the  terms  of  the  November  Treaty,  none  of  the  rights 
growing  out  of  Art.  64  and  Art.  63,  Cl.  3,  of  the  Imperial 
Constitution  apply  to  Bavaria.  In  time  of  peace  the  powers 
of  the  Kaiser  as  commander-in-chief  of  the  German  army 
do  not  operate  in  Bavarian  territory.2  The  sole  right  of  the 
Kaiser  with  respect  to  the  Bavarian  troops  in  time  of  peace 
is  the  right  of  inspection.  In  the  Schlussprotokoll  of  the 
November  Treaty,  Bavaria  agrees  to  keep  the  fortifications 
of  Ingolstadt  and  Germersheim,  and  all  fortifications  con- 
structed in  future  at  imperial  expense  within  Bavarian  terri- 
tory, in  a  condition  of  complete  efficiency.  In  a  time  of  war, 
however,  from  the  very  moment  when  the  mobilization  of  the 
Bavarian  troops  begins,  the  military  command  of  the  Bava- 
rian fortifications  as  well  as  of  the  Bavarian  troops  passes  to 
the  Kaiser.3 

1  RVerf.  64,  Cl.  2.     In  Wiirttemberg,  with  the  consent  of  the  king,  Mil. 
Conv.  Art  7.     With  reference  to  New  Ulm,  see  note  3  below. 

2  With  reference  to  New  Ulm,  see  note  3  below. 

3  A  rather  complicated  legal  relation  exists  with  respect  to  the  fortified 
town  of  Ulm.     Ulm  lies  partly  in  Wiirttemberg  and  partly  (New  Ulm)  in 
Bavarian  territory.     It  occupies  a  position  of  such  strategic  importance,  how- 
ever, that  the  special  rights  of  Wurttemberg  and  Bavaria  have  suffered  a  limi- 
tation.    This  limitation  is  based  on  an  agreement  between  Prussia,  Bavaria, 
and  Wurttemberg,  dated  at  Ulm,  16  June,  1874,  with  an  additional  Schluss- 
protokoll between  Prussia  and  Bavaria  and  between  Prussia  and  Wurttem- 
berg.    (See  Militargesetze  d.  D.  Reiches,  I.  pp.  175  ff.)     By  the  terms  of  this 
agreement,  Ulm,  on  both  sides  of  the  river,  is  declared  to  be  a  single  fortified 
place  under  the  sole  command  and  administration  of  the  Empire,  with  a  recog- 
nition, however,  of  the  territorial  supremacy  of  the  States  and  the  existing 
property  relations.     The  governor  of  the  fortification  is  named  by  the  Em- 
peror, as  are  also  the  commandant  and  officers  of  the  staff.      The  other 
positions  are  filled  by  the  States,  in  accord  with  the  budget.     All  the  officers, 
etc.,  engaged  in  the  imperial  service  tak^  the  oath  to  the  Emperor.     The  ser- 
vice is  regulated  by  the  Prussian  rules,  and  the  administration  of  the  total 
expenditure  is  carried  on  by  the  Prussian  Ministry  of  War.     See  Laband, 
IV.  p.  76;  Seydel,  Comm.  p.  374. 

2C 


386  THE  GERMAN  EMPIRE 

Under  the  Law  of  25  May,  1873,  §  *  (RGBl.  p.  113),  — 
the  law  determining  the  legal  relations  of  objects  employed  in 
the  service  of  the  imperial  administration,  —  all  fortifications, 
whether  existing  at  the  time  of  the  founding  of  the  North 
German  Confederation  and  of  the  Empire,  or  whether 
erected  later,  together  with  all  the  buildings,  lands,  and  equip- 
ments belonging  thereto,  are  the  property  of  the  Empire.1 
Here  also  Bavaria  occupies  an  exceptional  position.  In  the 
Schlussprotokoll  of  the  November  Treaty,  XIV.  §  2,  it  is 
declared  that  new  fortifications  built  at  federal  expense,  so 
far  as  their  "res  immobiles"  are  concerned,  become  the 
property  of  Bavaria,  while  the  res  mobiles,  on  the  contrary, 
become  the  property  of  the  Union.  All  the  material  for 
fortifications  already  in  existence  in  the  territory  of  Bavaria, 
however,  whether  movable  or  immovable,  is  Bavarian  prop- 
erty, since  the  equipment,  maintenance,  and  administration 
of  these  fortifications  are  at  Bavarian  expense  and  are  entirely 
outside  the  circle  of  imperial  appropriation  and  expendi- 
ture. 

So  far  as  the  costs  and  financial  burdens  connected  with 
the  military  organization  of  the  Empire  are  concerned,  the 
general  principle  obtains  that  the  stress  shall  be  equitably 
distributed  over  the  several  States.  Where  the  expenses  are 
borne  by  the  general  budget,  Bavaria  shares  in  the  ratio 
which  the  Bavarian  troops  bear  to  the  numerical  strength  of 
the  whole  army.  On  the  basis  of  this  ratio  the  amount  to  be 
spent  on  military  affairs  in  Bavaria  is  estimated  in  a  lump 
sum.  In  the  expenditure  of  this  sum  Bavaria  has  a  free 

1  When  these  fortifications  are  no  longer  of  use  and  this  fact  has  been 
determined  by  the  proper  authorities,  the  property  is  returned  to  the  State 
after  the  completion  of  the  grading  necessary  to  prevent  them  becoming  a 
menace  to  the  country  and  on  payment  of  the  cost  of  such  grading.  Law  of 
25  May,  1873,  §§7  and  8.  Compare  with  Art.  IV.  Cl.  i,  and  Art.  V. 
of  the  Law  of  30  May,  1873  (RGBl.  p.  123). 


THE  ARMED  FORCES  OF  THE  EMPIRE  387 

hand.     In  the  construction  of  new  fortifications,  wherever 
located,  Bavaria  also  shares  in  like  ratio.1 

The  Imperial  Constitution  contains  but  one  reference  to 
naval  ports.  Art.  53,  Cl.  2,  reads:  "The  harbor  of  Kiel 
and  the  harbor  of  Jade  are  imperial  naval  ports."  By 
imperial  Kabinetsordre  of  15  February,  i873,2  these  ports 
are  classed  as  fortified  places  and  in  general  with  respect  to 
military  and  territorial  matters  fall  under  the  administration 
of  the  Imperial  Board  of  Admiralty.8 

THE   DISTRIBUTION  OF   MILITARY  BURDENS   AND 
EXPENSES 

Article  58  of  the  Imperial  Constitution  reads,  "The  costs 
and  burdens  of  the  whole  military  system  of  the  Empire  shall 
be  borne  equally  by  all  the  States  and  their  citizens,  so  that 
neither  special  privileges  nor  exactions  shall  be  permitted 
to  individual  States  or  classes."  The  plain  intent  of  this 
article  is  that  whatever  demands  are  made  upon  the  States 
with  respect  to  the  military  organization,  those  demands  shall 
be  made  equitably.  The  contributions  of  the  several  States 
must  take  two  forms :  the  providing  of  men,  and  the  furnish- 
ing of  money.  These  may  be  discussed  separately. 

I.  The  Furnishing  of  Recruits.  —  An  attempt  is  made  in 
the  Constitution  to  deal  with  the  matter  of  furnishing  recruits 
to  the  imperial  army.  Article  60  provides  that  up  to  31 
December,  1871,  the  number  of  the  German  army  shah1  be 
fixed  at  one  per  cent  of  the  population  of  1867,  and  shall  be 

1  See  Treaty  of   23   November,  1870,  III.  §  5,  V.  Cl.  2;    also  Law   of 
8  July,  1872    (RGBl.   p.  289);  and  of  30  May,  1873   (RGBl.  p.  1231); 
Seydel,  Comm.  373. 

2  Marineverordnungsblatt,  p.  37. 

3  See  also  Law  of  19  June,  1883  (RGBl.  p.  165)  for  certain  police  regula- 
tions. 


388  THE  GERMAN  EMPIRE 

furnished  by  the  several  States  in  the  ratio  of  their  population. 
After  31  December,  1871,  the  numerical  strength  of  the 
army  on  a  peace  footing  was  to  be  fixed  by  imperial  law. 
Such  a  law  was  had  in  the  Military  Law  of  2  May,  1874 
(RGBl.  p.  45),  §  9  of  which  adopted  the  principle  laid  down 
in  the  Constitution.  Nineteen  years  later,  the  Law  governing 
the  Distribution  of  Recruits  changed  this  principle  in  such 
wise  that  the  number  of  men  to  be  furnished  was  no  longer 
determined  according  to  the  ratio  of  population,  but  accord- 
ing to  the  ratio  of  men  liable  to  military  duty  and  fit  for  such 
service.1 

By  the  Law  of  2  May,  1874,  the  Empire  was  divided  into 
seventeen  Army  Corps  Districts.  This  number  was  subse- 
quently increased  to  nineteen,2  and  finally  to  twenty-two,3 
where  it  now  stands.  While  the  active  strength  of  the 
army  in  time  of  peace  and  the  standing  organization  of  the 
army  are  fixed  by  imperial  law,  the  Kaiser  is,  by  the  Law 
governing  the  Distribution  of  Recruits,  given  authority  to 
determine  the  number  of  recruits  to  be  levied  annually,  both 
in  the  army  and  in  the  navy.4  The  distribution  of  these 
recruits  is  not  based  on  the  State  as  a  unit,  but  on  the  Army 
Corps  District.  In  these  districts  the  actual  distribution  is 
made  by  the  War  Ministries  of  the  four  States  possessing 
their  own  contingents,  and  not,  as  formerly,  by  the  Committee 
of  the  Bundesrat  for  the  Army  and  Fortifications.  The  dis- 
tribution in  the  navy  is  made  by  the  Prussian  Ministry  of 
War.5  In  Bavaria,  the  need  of  recruits  is  determined  by  the 

1  Law  of  26  May,  1893  (RGBl.  p.  185),  Art.  II.  §§  i  and  2.     In  this  ratio 
the  seafaring  folk  are  excluded.     Law,  §  i,  Cl.  2. 

2  Law  of  27  Jan.,  1890  (RGBl.  p.  7). 

8  Law  of  25  March,  1899  (RGBl.  p.  215),  Art.  I. 

4  Law,  §  i:  "Der  Kaiser  bestimmt  fur  jedes  Jahr  die  Zahl  der  in  das 
Heer  und  in  die  Marine  einzustellenden  Rekruten." 
6  Law  of  26  May,  1893,  Art.  II.  §  i,  Cls.  i  and  2. 


THE  ARMED   FORCES  OF  THE  EMPIRE  389 

king  of  Bavaria,  but  such  regulations  as  may  be  made  by 
the  Kaiser  for  the  federal  army  operate  also  here. 

When  an  Army  Corps  District  is  not  able  to  muster  its 
full  share  of  recruits,  the  deficiency  is  made  up  out  of  the 
surplus  men  in  other  Army  Corps  Districts  of  the  same 
contingent.1  That  is  to  say,  each  contingent  covers  the 
deficiency  in  recruits  which  may  arise  in  the  Army  Corps  Dis- 
tricts within  that  contingent.  No  contingent  may,  ordinarily, 
draw  upon  the  surplus  of  another  contingent  to  make  good 
its  deficiency.  Should  necessity  arise,  however,  in  time  of 
peace,  the  Army  Corps  Districts  in  the  four  independent 
contingents  may  be  called  upon  to  furnish  recruits  to  the 
army  corps  of  other  imperial  contingents  in  proportion  to 
the,  number  of  recruits  from  States  lying  within  those  contin- 
gents, found  in  the  ranks  of  those  army  corps.  No  greater 
demand,  however,  may  be  made.2 

The  distribution  of  recruits  throughout  the  various  divi- 
sions of  the  army,  after  such  recruits  have  been  furnished,  is 
determined  wholly  by  the  needs  of  the  army.3  Such  question 
of  need  is  decided  by  the  Emperor  or  by  the  military  authorities 
in  command.  Troops,  therefore,  no  matter  in  what  district 
or  State  they  may  have  been  levied,  may,  by  order  of  the 
Kaiser,  be  placed  in  any  division  of  the  whole  imperial 
army,  and  the  government  of  the  individual  State  has  no 
right  of  interference  or  of  objection.  Like  most  rules,  this, 
too,  has  suffered  an  exception.  No  troops  recruited  in 

1  Law  of  26  May,  1893,  Art.  II.  §  i,  Cl.  4. 

2  See  Law  of  26  May,  1893,   Art.  II.  §  i,   Cl.  5.     The  Law  of  2  May, 
1874,  §  12,  provides  that  every  man  liable  to  military  service  must  present 
himself  for  such  service  in  the  levying  district  in  which  he  has  his  residence. 
Many  therefore  are  found  in  the  troops  of  a  contingent  within  whose  juris- 
diction their  home  State  does  not  lie.     As  elsewhere  noted,  the  regulation 
of  this  matter  is  in  the  hands  of  the  four  Ministries  of  War. 

3  Law  of  26  May,  1893,  Art.  II.  §  i,  Cl.  6. 


390  THE  GERMAN  EMPIRE 

another  State  may  be  assigned  to  the  Bavarian  contingent, 
nor  can  Bavarian  recruits  be  claimed  by  other  contingents. 
This  exemption  of  Bavaria  is  a  constitutional  one,  based  on 
the  addition  to  Art.  58  of  the  Imperial  Constitution,  con- 
tained in  the  November  Treaty,  whereby  Bavaria  assumes 
the  sole  burden  of  her  own  military  organization,  and  also 
on  the  exclusion  of  the  supreme  military  command  of  the 
Emperor  over  the  Bavarian  troops  in  time  of  peace.  It 
takes  the  character  of  a  constitutional  "  Sonderrecht,"  which 
cannot  be  changed  save  in  the  method  prescribed  by  Art.  78 
of  the  Imperial  Constitution.  A  similar  relation  exists  in 
time  of  peace  with  respect  to  Saxony  and  Wiirttemberg,  inas- 
much as  both  these  States  levy  such  additional  recruits  as  may 
be  needed  in  their  own  territory,  and  recruits  levied  by  them 
may  not  be  assigned  to  other  contingents.1  In  the  military 
conventions  made  between  Prussia  and  those  States  whose 
contingents  have  been  absorbed  into  the  Prussian  contingent, 
certain  assurances  have  been  given  with  respect  to  the  disposi- 
tion of  the  troops  levied  within  their  territory.2 

II.  The  Financial  Burdens. — Article  53,  Cl.  3,  of  the  Impe- 
rial Constitution  provides  that  "the  expenditure  required  for 
the  establishment  and  maintenance  of  the  navy  and  the  insti- 
tutions connected  therewith  shall  be  defrayed  out  of  the  im- 
perial treasury."  Article  62,  Cl.  3,  provides,  in  like  manner, 
that  the  expenses  of  the  army  are  to  paid  out  of  the  imperial 
treasury,  and  that  such  expenditures  shall  be  fixed  by  law. 
So  far  as  the  income  of  the  Empire  is  not  sufficient  to  meet 
these  expenses,  they  are  to  be  met  by  means  of  a  contribution 

1  Laband,  IV.  p.  51. 

2  Mil.  Conv.  with  Baden,  Art.  9,  Cl.  2;  Hesse,  Art.  10,  Cl.  2;  Oldenburg, 
Art.  4,  Cl.  i;  Thiiringian  States  and  Anhalt,  Arts,  i  and  3;    Mecklenburg, 
see  Heerordnung,  §    2,   (6);    Waldeck,  Art.  2;    Schwarzburg,    Arts.    1-3; 
Schaumburg-Lippe,  Arts,    i   and  2 ;  Lippe-Detmold,   Arts.   1-3 ;  Ltibeck, 
§  2;  Hamburg,  §  2;  Bremen,  §  2. 


THE  ARMED   FORCES  OF  THE  EMPIRE  391 

made  by  the   several  States  in  the   ratio  of  their  popula- 
tion.1 

With  respect  to  the  financial  burdens  for  military  purposes, 
Bavaria  occupies,  as  in  many  other  things,  a  special  and 
peculiar  position.  The  provisions  of  Art.  58  of  the  Imperial 
Constitution,  to  the  effect  that  all  costs  and  burdens  of  the 
entire  military  system  shall  be  borne  equally  by  all  the  States, 
apply  to  Bavaria  also.  Nevertheless,  a  certain  modification 
has  been  introduced  by  the  terms  of  the  November  Treaty. 
It  is  declared  in  that  instrument  —  III.  §  5  —  that  "Art.  58 
is  equally  valid  for  Bavaria.  This  article,  however,  shall 
receive  the  following  addition,  'The  obligation  indicated  in 
this  article  shall  apply  to  Bavaria  in  such  wise  that  Bavaria 
shall  bear,  exclusively  and  alone,  the  costs  and  burdens  of  her 
military  system,  including  the  fortified  places  and  other 
fortifications  situate  in  her  territory. ' ':  This  article,  as  Seydel 
well  observes,  is  unhappy  in  its  wording,  and  misleading. 
It  is  by  no  means  intended  by  this  article  that  Bavaria  shall 
support  exclusively  and  alone  her  military  system,  and  stand 
outside  the  general  obligation  to  share  equally  in  the  whole 
financial  burden  of  the  federal  military  organization.  Bavaria 
shares  with  the  other  States  the  general  financial  obligation. 
So  far  as  the  financial  administration  of  her  military  system 
is  concerned,  however,  Bavaria  occupies  an  independent 
position.  In  the  general  budget,  the  amount  to  be  expended 
by  Bavaria  is  fixed  in  a  lump  sum,  which  stands  to  the  sum 
total  to  be  expended  for  imperial  military  purposes  as  the 
numerical  strength  of  the  Bavarian  contingent  stands  to  that 
of  the  rest  of  the  imperial  army.  The  expenditure  of  this 
lump  sum  is  left  wholly  to  Bavaria.  The  special  items  are 
fixed  by  Bavaria,  not  by  the  Empire.  Bavaria  is  bound, 
nevertheless,  in  making  up  the  items  of  her  military  budget, 

1  RVerj.  Art.  70. 


392  THE  GERMAN  EMPIRE 

to  have  respect  to  the  norms  and  standards  set  up  in  the 
imperial  military  budget.1 

The  expenditures  for  military  purposes  are  made  by  the 
States  having  their  own  military  administration,  and  are 
made  in  conformity  with  the  items  fixed  in  the  budget  and 
with  the  provisions  of  the  laws  and  ordinances  on  the  subject. 
All  such  expenditures,  being  in  fact  imperial  disbursements, 
are  under  the  control  of  the  Imperial  Auditing  Court, 
and  must  be  submitted  annually  by  the  Imperial  Chancellor 
to  the  Bundesrat  and  to  the  Reichstag  for  their  discharge.2 
No  deviation  from  the  items  fixed  in  the  budget  may  be  made 
without  the  express  permission  of  the  Chancellor.8  This 
principle  does  not  operate,  of  course,  in  Bavaria.  The 
Bundesrat  and  Reichstag  have  merely  to  satisfy  themselves 
that  the  sum  set  aside  in  the  budget  for  the  uses  of  the  Bava- 
rian army  has  actually  been  handed  over  to  the  proper 
Bavarian  authorities.  The  control  and  discharge  so  far  as 
this  sum  is  concerned  are  matters  of  Bavarian  constitutional 
law.8 

Any  surplus  that  may  exist  after  the  military  administra- 
tion of  a  contingent  has  been  closed  for  the  year,  any  saving 
that  might  accrue,  does  not  flow  into  the  treasury  of  the  State 
in  whose  contingent  the  saving  has  been  made,  but  into  the 
imperial  treasury.4  Here,  again,  Bavaria  forms  an  excep- 
tion, inasmuch  as,  according  to  the  express  declaration  of  the 
Treaty  of  Versailles,  Art.  67  of  the  Imperial  Constitution  does 
not  apply  to  Bavaria.  A  formal  guarantee  that  Bavaria  will 

1  See  November  Treaty,  III.  §  5,  II.     Also  Seydel,  Comm.  pp.  320,  345. 
Seydel,  op.  cit.  p.  320,  remarks :   "  Die  Hauptbedeutung  des  Zusatzes  ist  die, 
klar  zu  stellen,  dass  die  bayerische  Heersverwaltung  zwar  eine  Verwaltung 
aus  Reichsmitteln,  nicht  aber  von  Reichsmitteln  ist." 

2  RVerj.  Art.  7. 

*  See  Schlussbestimmung  zum  Abschntit  XII.  der  RVerf. 
4  See  Art.  67  of  the  RVerf. 


THE  ARMED  FORCES  OF  THE  EMPIRE  393 

not  save,  in  the  administration  of  its  military  affairs,  at  the 
expense  of  the  efficiency  of  its  contingent,  is  found  in  the 
Kaiser's  right  of  inspection.1 

Wurttemberg  is  also  conceded  the  right  to  administer  in- 
dependently the  moneys  to  be  expended  for  the  maintenance 
of  her  army.2  Should  there  be  a  surplus  after  all  the  obliga- 
tions of  her  military  administration  have  been  fully  met, 
such  savings  remain  at  the  disposal  of  Wurttemberg.  The 
position  of  Wurttemberg  is  not,  however,  identical  with  that 
of  Bavaria.  The  special  items  in  her  military  budget  are 
not  fixed  by  Wurttemberg,  but  by  the  Empire,  and  all 
her  military  accounts  are  audited  by  the  Imperial  Audit- 
ing Court.  Further,  in  Wurttemberg  the  provisions 
made  in  the  budget  for  the  imperial  army  must  be  com- 
pletely carried  out;  they  do  not  form,  as  in  Bavaria,  the 
"general  norm"  merely,  for  the  administration  of  military 
affairs.3 

The  Military  Conventions.  —  Numerous  references  have 
been  made,  in  the  foregoing  discussion,  to  various  "military 
conventions."  A  brief  treatment  of  these  instruments  re- 
mains to  be  made.  In  discussing  the  military  conventions, 
a  distinction  is  to  be  drawn  between  those  concluded  with 
Saxony,  Wurttemberg,  and  Bavaria,  and  those  concluded 
with  the  other  States  and  Free  Cities.4  These  two  groups 
of  conventions  do  not  belong  in  the  same  category,  nor  have 

1  See  also  Seydel,  Comm.  p.  346. 

2  See  Mil.  Conv.  of  21-25  November,  1870,  §  12,  Cl.  i. 

3  With  respect  to  the  furnishing  of  forage,  teams,  the  quartering  of  soldiers, 
and  the  thousand  and  one  things  of  a  similar  sort  which  may  be  included  under 
the  head  of  military  burdens,  see  the  extended  discussion  by  Laband,  IV. 
pp.  258  ff. 

4  There  is  not,  properly  speaking,  a  military  convention  between  the  Bund, 
or  the  Empire,  and  Bavaria.      That  part  of  the  November  Treaty  included 
in  Art.  III.  §  5,  however,  practically  amounts  to  the  same  thing. 


394  THE  GERMAN  EMPIRE 

they  the  same  significance  in  constitutional  law.  We  take 
up  the  more  numerous  group  first.1 

It  is  an  indisputable  principle  in  constitutional  law  that  the 
Imperial  Constitution  cannot  be  amended,  or  in  any  wise 
changed,  by  any  agreement  made  by  the  several  States  or  their 
governments  among  themselves,  —  not  even  by  an  agreement 
in  which  all  should  join.  The  Constitution  recognizes  but 
one  mode  of  amendment  and  that  mode  is  not  by  contract  or 
convention.  But  an  amendment  of  the  Constitution  is  pre- 
cisely what  these  conventions,  at  first  sight,  appear  to  effect. 
It  remains  to  be  seen  whether  this  is  actually  the  case,  whether 
these  conventions  are,  in  the  last  analysis,  unconstitutional 
and  therefore  void.  For  the  provisions  of  the  Imperial  Con- 
stitution take  precedence  not  only  of  State  laws,  but  also 
of  all  agreements  between  the  States  touching  the  same 
subjects. 

Upon  examining  the  conventions,  it  will  be  found  that  they 
all  contain  provisions  by  which  the  exercise  of  the  rights  of 
military  supremacy  belonging  to  the  States  which  made  these 
conventions  are  wholly  or  in  part  handed  over  to  the  king 
0}  Prussia.  These  instruments  contain  stipulations  with 
respect  to  the  administration  and  maintenance  of  the  contin- 
gents, the  appointment,  commission,  and  dismissal  of  officers 
and  officials,  the  recruiting  of  troops,  the  establishment  of  mili- 
tary courts,  the  enforcement  of  discipline,  in  short,  they  touch 
the  whole  circumference  of  military  activity  affected  by  the 
military  supremacy  of  the  several  States.  In  other  words, 
these  conventions  are  a  recognition  of  the  fact  that  the  Im- 

1  On  the  subject  of  the  military  conventions,  see  Laband,  IV.  pp.  24  ff. ; 
also  in  Archiv  /.  d.  off.  Recht,  III.  pp.  729  ff. ;  Hanel,  Studien,  I. 
pp.  244  ff.,  also  Staatsr.  I.  pp.  490  ff. ;  Brockhaus,  op.  cit.  pp.  163  ff. ; 
Tepelmann,  Die  rechtliche  Natur  der  Militdrconventionen  im  Deutschen 
Reiche  und  ihr  Einfluss  auj  die  Einheitlichkeit  des  Reichsheeres,  Hannover, 
1891;  Seydel,  Comm.  pp.  375  ff. 


THE  ARMED  FORCES  OF  THE  EMPIRE  395 

perial  Constitution  did  not  withdraw,  ipso  jure,  from  the 
several  States  the  right  to  govern  themselves  in  military  mat- 
ters, but  that  a  considerable  measure  of  autonomy  still  re- 
mains at  the  disposal  of  these  commonwealths.  This  is  the 
basal  principle  upon  which  these  conventions  rest,1  —  a 
principle  which  is  none  the  less  effective  for  coming  to  ex- 
pression by  way  of  a  renunciation  rather  than  of  an  assertion 
on  the  part  of  the  States.  A  right  cannot  be  renounced  unless 
previously  possessed.  A  right  may  be  asserted,  however, 
which  never  existed.  So  far  as  these  conventions  relate  to 
matters  well  within  the  autonomous  rights  of  the  States,  no 
difficulty  is  presented  with  respect  to  the  relation  they  sus- 
tain to  the  Imperial  Constitution.  They  do  not  affect  it  in 
any  wise.  They  simply  confer  on  the  king  of  Prussia  the 
exercise  of  certain  rights  belonging  to  the  States  themselves, 
or  their  rulers,  —  rights  which  do  not  fall  within  the  scope  of 
the  Constitution. 

But  the  conventions  do  not  stop  at  this  point.  The  king 
of  Prussia  is  also  Kaiser  and  commander-in-chief  of  the 
federal  forces.  Any  agreement  which  might  be  made  between 
the  States,  Prussia  not  excluded,  affecting  the  rights  of  the 
Kaiser,  either  limiting  them  or  enlarging  them,  would  mani- 
festly exceed  the  powers  of  the  contracting  parties.  Nor 
could  the  Kaiser  himself,  by  his  own  individual  act,  divest 
himself  of  any  of  the  rights  vested  in  him  by  the  Constitution, 
or  delegate  the  exercise  of  them  to  another  without  the  ex- 
press authority  of  the  Constitution.  Such  an  act  would  be 
an  amendment  of  the  Constitution  and  would  therefore  lie 
wholly  beyond  the  power  of  the  Kaiser.  Nevertheless,  the 
military  conventions  contain  certain  concessions  on  the  part 
of  the  Kaiser  in  return  for  certain  concessions  made  to  the 
king  of  Prussia  —  concessions  which  seem  to  place  direct 

1  Laband,  IV.  p.  25. 


396  THE  GERMAN  EMPIRE 

limitations  upon  the  rights  conferred  upon  the  Kaiser  by  the 
Constitution,  notably  the  right  of  "  dislocation "  and  the  right 
to  determine  the  formation  and  organization  of  the  contingents. 
Here  the  conventions  touch  matters  which  are  wholly  outside 
the  sphere  of  State  autonomy  and  also  wholly  beyond  the 
power  of  the  Kaiser  to  divest  himself  of.  It  is  at  this  point 
that  a  difficulty  arises  in  determining  the  status  of  these  in- 
struments in  constitutional  law.  "The  relation  of  the  several 
States  to  the  Empire,  more  particularly  the  exercise  of  the 
rights  conferred  upon  the  Kaiser  by  the  Imperial  Con- 
stitution, cannot  be  regulated  by  a  State  treaty  made  by  the 
king  of  Prussia,  but  only  by  an  act  of  will  on  the  part  of  the 
Kaiser.  On  the  other  hand,  the  assumption  of  the  troops 
of  a  German  State  into  the  Prussian  military  organization  and 
administration,  and  the  fixing  of  the  manner  in  which  this 
shall  be  done,  is  the  act,  not  of  the  Kaiser,  but  of  the  king 
of  Prussia  alone."  *  In  determining  the  status  of  these  con- 
ventions, therefore,  one  must  first  ascertain  with  exactness 
who  are  the  contracting  parties,  or,  since  the  States  themselves 
are  always  the  "parties  of  the  first  part,"  one  must  definitely 
discover  the  "party  of  the  second  part."  Further,  the  con- 
tents of  the  conventions  must  be  scanned  in  order  to  de- 
termine whether  the  specific  items  in  those  instruments 
fall  within  the  power  of  the  parties  to  contract,  in  other 
words,  the  question  of  the  competence  of  the  parties  to 
contract  with  reference  to  these  particular  matters  must  be 
raised. 

As  to  the  first  point,  no  uniformity  exists.  The  treaty  with 
Baden  is  made  with  "the  king  of  Prussia,  as  federal  com- 
mander-in-chief";  the  Mecklenburg  treaties  of  1867,  1868, 
as  well  as  the  treaties  of  Oldenburg,  Braunschweig,  and 
Waldeck  of  1867,  1877,  with  the  "king  of  Prussia";  the 

1  Laband,  IV.  p.  26.     See  also  Brockhaus,  op.  cit.  p.  164. 


THE   ARMED   FORCES   OF  THE   EMPIRE  397 

treaty  of  the  three  Hanse  Cities  with  the  "Royal  Prussian 
government" ;  all  the  rest  with  the  "  German  Kaiser  and  the 
king  of  Prussia." 

As  to  the  second  point,  two  principles  emerge  as  governing 
the  question  of  the  validity  of  the  conventions  and  their  legal 
effect.  So  far  as  the  matters  touched  upon  in  the  conven- 
tions lie  within  the  competence  of  the  State,  the  consent  of  the 
Bundesrat  and  of  the  Reichstag  is  not  required  in  order  to  give 
validity  to  the  agreement,  since  the  rights  of  the  Empire  are 
not  disturbed.  The  consent  of  the  Landtag  of  the  State,  how- 
ever, must  be  obtained  in  such  form  as  the  constitution  of  the 
State  may  provide,  if  the  proposed  convention  amends  the  ex- 
isting law  or  affects  in  any  wise  the  sovereign  rights  of  the 
State.  As  a  matter  of  fact,  none  of  the  conventions  limit 
the  sovereign  rights  of  Prussia  at  all,  nor  do  they  subject  the 
Prussian  State  to  any  financial  burdens.1  These  conven- 
tions, therefore,  did  not  require  the  consent  of  the  Prussian 
Landtag  for  their  validity,  and  they  became  effective  upon 
securing  the  consent  of  the  contracting  State  alone,  after 
proper  publication.  Where,  on  the  other  hand,  the  conven- 
tions touch  the  relations  of  the  several  States  to  the  Empire, 
the  consent  of  the  Landtag  of  the  contracting  State  is  neces- 
sary when  the  rights  of  the  State  are  affected  or  financial 
burdens  assumed,  and  the  consent  of  the  Bundesrat  and  Reichs- 
tag is  necessary  if  imperial  rights  are  disturbed  or  imperial 
laws  modified.  Should  the  Constitution  of  the  Empire  be 
affected  by  the  convention,  the  provisions  of  Art.  78  —  relat- 
ing to  the  mode  of  amending  the  Constitution  —  must  be 
observed,  and  the  convention  must  also  be  published  in  the 
Imperial  Gazette.  But  where  the  conventions  do  not  affect 
the  Constitution  or  laws  of  the  Empire,  but  touch  only  the 
exercise  of  certain  authority  conferred  by  the  Imperial  Con- 

1  Laband,  IV.  p.  27,  note  i. 


398  THE  GERMAN  EMPIRE 

stitution  and  laws  upon  the  Kaiser,  then  these  conventions 
require  only  the  consent  of  the  Kaiser,  not  that  of  the  Bundes- 
rat  and  Reichstag,  nor  need  they  be  published  in  the  Imperial 
Gazette.  It  is  enough  if  the  convention  be  communicated  to 
the  Bundesrat  and  Reichstag,  as  evidence  that  the  instrument 
does  not  intrude  upon  the  sphere  of  legislation.1  The  con- 
ventions we  have  been  considering  are  of  this  sort.  Their 
content  reaches  only  to  the  manner  in  which  the  authority 
conferred  upon  the  Kaiser  by  the  Imperial  Constitution 
shall  be  exercised.  They  involve  no  infringement  or  aban- 
donment of  the  rights  of  the  Kaiser,  but  are  simply  an  agree- 
ment as  to  the  method  of  their  exercise.  "That  the  legal 
principles  as  such,  laid  down  in  the  Imperial  Constitution 
and  in  the  imperial  laws  are  not  disturbed  by  the  military 
conventions,  comes  clearly  to  light  in  the  fact  that  these 
conventions  may  be  repealed  by  the  consent  of  the  contracting 
parties,2  and,  with  respect  to  many  of  the  States,  by  a  uni- 
lateral notice.3  Should  use  be  made  of  this  reservation,  the 
State  would  again  acquire,  ipso  facto,  the  sovereign  military 
rights  which  constitutionally  belong  to  it."  4 

'"Diese  Conventionen  reichen  an  das  Niveau  der  Gesetzgebung,  insbe- 
sonders  der  Verfassung,  gar  nicht  hinan ;  sie  lassen  die  verfassungsmassig 
oder  reichsgesetzlich  sanktionierten  Rechtsdtze  vollig  unberiihrt,  sie  aussern 
ihre  Wirkungen  ausschliesslich  auf  dem  Gebiet  der  Verwaltung,  in  specie 
des  militarischen  Oberbejehls,  welches  der  freien  Entschliessung  des  Kaisers 
unterstellt  ist."  Laband,  IV.  p.  28.  See  also  Hanel,  Studien,  I,  246, 
Staatsr.  I.  p.  490;  Brockhaus,  op.  cit.  pp.  166  ff. 

J  That  the  conventions  may  be  repealed  by  mutual  consent  is  self-evident. 
It  is  specially  stipulated  in  the  convention  with  Baden,  Art.  21 ;  Oldenburg, 
Art.  54;  Hamburg,  Art.  34;  Liibeck,  Art.  24;  Bremen,  Art.  42.  The  ob- 
ject of  the  stipulation  was  to  exclude  the  right  of  repeal  by  a  unilateral  notice. 

8  The  right  of  repeal  by  unilateral  notice  is  recognized  in  the  convention 
with  the  Thuringian  States,  Art.  16;  Schwarzburg-Sonderhausen,  Art.  14; 
Lippe-Detmold,  Art.  14;  Schaumburg-Lippe,  Art.  13;  Waldeck,  Art.  12; 
Braunschweig,  Art.  10. 

« Laband,  IV.  p.  28. 


THE  ARMED   FORCES  OF  THE  EMPIRE  399 

The  conventions  with  Saxony,  Wtirttemberg,  and  Bavaria, 
as  already  stated,  rest  upon  a  different  basis,  and  possess  a 
peculiar  juristic  character.  What  has  been  said  of  the  more 
numerous  conventions  discussed  above  has  no  application 
to  these  instruments.  The  subject  has  been  handled  so  ably 
and  succinctly  by  Laband,  in  his  master  work,  that  I  venture 
to  translate  a  page  or  two. 

"The  convention  with  Saxony  was  concluded  on  the 
7  February,  1867,  hence  before  the  Constitution  of  the  North 
German  Confederation  came  into  force.  In  the  preamble 
to  the  agreement,  it  was  remarked  that  the  convention  was 
drawn  to  fit  the  provisions  of  the  Constitution  of  the  North 
German  Confederation,  with  respect  to  military  matters,  to 
the  special  relations  sustained  by  the  kingdom  of  Saxony, 
and  was  designated  as  a  special  agreement  based  upon  the 
principles  of  the  Treaty  of  Peace,  of  21  October,  1866, 
which  should  go  into  effect  and  remain  in  force,  independently 
of  all  further  transactions  with  reference  to  that  same  treaty. 
According  to  the  wording  of  this  convention,  both  parties  to 
the  contract  were  apparently  agreed,  first,  that  the  instru- 
ment should  have  validity  even  if  the  anticipated  union  under 
a  federal  constitution  was  not  consummated;  and,  second, 
that  so  far  as  Saxony  was  concerned,  it  should  remain  in 
force  even  though  the  federal  constitution  might  contain 
certain  provisions  touching  military  matters,  which  would 
stand  in  contradiction  to  its  terms.  This  idea  comes  to 
explicit  expression  in  an  appended  Protokoll  of  8  February, 
1867,  in  which  it  is  agreed  that  the  words  'or  without,' 
inserted  in  Art.  61  of  the  proposed  draft  of  the  constitution  — 
Art.  64,  Cl.  3  of  the  Imperial  Constitution  —  by  the  Con- 
ference of  Plenipotentiaries  of  7  February,  1867,  'should 
have  no  application  to  the  kingdom  of  Saxony,  since  they 
went  beyond  the  intent  of  the  convention  between  Saxony 


400  THE  GERMAN  EMPIRE 

and  Prussia.'  The  fact  is  also  to  be  emphasized  that  of  all 
of  the  conventions  made  with  the  States  of  the  North  German 
Confederation,  the  convention  entered  into  with  Saxony  is 
the  only  one  which  contains  no  limitation  upon,  or  diminution 
of,  the  rights  constitutionally  reserved  to  the  several  States, 
and  which  confers  none  of  these  rights  upon  Prussia,  but 
which  simply  deals  with  the  relation  of  the  Saxon  contingent 
to  the  'Bund'  and  to  the  ' Bundesjeldherr.'  In  the  pre- 
amble, one  of  the  contracting  parties  is  referred  to  as  the 
'king  of  Prussia,  as  Bundesfeldherr,'  although  at  the  time 
the  convention  was  concluded  no  other  relation  existed 
than  that  created  by  the  Treaty  of  18  August,  1866.  It  may 
be  deduced  from  all  this,  that,  in  the  intention  of  the  parties 
to  the  contract,  the  Convention  of  7  February,  1867,  should 
contain  a  special  regulation  of  the  military  organization  with 
respect  to  Saxony,  which  should  take  precedence  of  the 
general  regulation  of  the  federal  military  organization  as 
provided  for  by  the  Constitution.  This  character  of  a  special 
constitutional  law  was,  however,  not  given  it  eventually.  To 
have  done  so,  would  have  necessitated  the  incorporation  into 
the  Constitution  of  the  North  German  Confederation  of  some 
such  reservation  as  that  contained  in  the  '  Schlussbestim- 
mung*  to  Sec.  XI  with  respect  to  Bavaria  and  Wurttemberg. 
Inasmuch  as  Saxony,  however,  notwithstanding  the  fact  that 
this  did  not  take  place,  accepted  the  Constitution  of  the 
North  German  Confederation  and  entered  into  the  Union, 
she  has  renounced  the  declarations  contained  in  the  conven- 
tion as  a  constitutional  reserved  right  —  Sonderrecht  —  and 
has  contented  herself  with  the  general  rights  established  by 
the  Constitution.  This  is  conclusively  shown  also  in  the 
conduct  both  of  Saxony  and  of  the  Empire,  in  that  no  use 
was  made  of  the  opportunity  presented  at  the  revision  of  the 
Imperial  Constitution,  to  embody  the  Saxon  convention 


THE  ARMED   FORCES  OF  THE  EMPIRE  401 

also  in  the  Schlussbestimmung  to  Sec.  XI.  In  so  far,  there- 
fore, as  the  provisions  of  the  Saxon  convention  may  stand  in 
conflict  with  the  provisions  of  the  Imperial  Constitution  or  of 
the  imperial  laws,  the  convention  must  yield  the  precedence. 
No  such  conflict  has  taken  place,  since  the  Imperial  Consti- 
tution grants  to  the  Kaiser  certain  powers  which  he  may 
exercise  according  to  his  own  discretion,  while  the  con- 
vention insures  a  certain  definite  exercise  of  these  powers  on 
the  part  of  the  Kaiser.  Precisely  here  is  found  one  appli- 
cation of  that  freedom  of  disposition  which  is  guaranteed  to 
the  Kaiser  by  the  Imperial  Constitution."1 

The  convention  with  Wurttemberg  was  concluded  at  the 
same  time  with  the  treaty  of  federation  and  by  Art.  2  (5)  of 
the  same  was  declared  to  be  an  integral  part  of  the  treaty.2 
It  has  this  in  common  with  the  Saxon  convention :  it  does 
not  limit  the  rights  of  military  supremacy  guaranteed  to  the 
several  States  by  the  Constitution,  nor  does  it  confer  any  of 
them  upon  Prussia.  It  touches  exclusively  the  relation  of 
Wurttemberg  to  the  Empire  and  to  the  Kaiser,  and  it  contains 
agreements  as  to  the  special  manner  in  which  the  constitu- 
tional provisions  shall  be  applied  to  the  Wurttemberg  army 
corps.  It  differs  from  the  Saxon  convention  only  in  con- 
taining far  wider  reaching  and  more  considerable  modifica- 
tions of  the  constitutional  norms.  The  general  trend  of  the 
Wurttemberg  convention  harmonizes  with  that  of  the  Saxon 
convention  in  that  it  aims  to  set  up  a  singular  right  over 
against  the  common  constitutional  rights,  and  to  take  pre- 
cedence of  them.  While  this  aim  was  not  attained  in  the 


1  For  a  divergent  view,  see  Hanel,  Studien,  I.  247 ;  Staatsr.  I.  492,  note  5. 
See  also  Seydel,  Comm.  p.  381. 

3  The  convention  is  dated  from  Versailles  21  November,  1870,  and  from 
Berlin  25  November,  1870,  and  was  published  in  the  BCBl.  1870,  as  part 
of  the  Treaty  of  Federation. 


402  THE  GERMAN  EMPIRE 

case  of  Saxony,  it  was  fully  realized  in  an  incontestable  legal 
form  in  the  case  of  Wiirttemberg.  The  stipulations  of  the 
Wiirttemberg  convention  are  declared  by  the  Schlussbe- 
stimmungen  of  Sec.  XI  of  the  Imperial  Constitution  to  be  an 
integral  part  of  the  organic  law.  They  form  a  constitutional 
"  Sonderrecht"  which  can  be  taken  away  only  in  the  manner 
prescribed  in  Art.  78  of  the  Imperial  Constitution.1  While, 
in  the  Saxon  convention,  the  Kaiser  has  voluntarily  imposed 
upon  himself  certain  limits  to  the  exercise  of  the  powers  con- 
stitutionally belonging  to  him,  so  far  as  Wurttemberg  is 
concerned  these  powers  legally  belong  to  the  Kaiser  only  to 
the  extent  in  which  they  are  recognized  in  the  Convention. 
The  limit  upon  the  exercise  of  them  does  not  root  itself  in 
the  free  will  of  the  Kaiser,  but  in  the  constitutional  provi- 
sions of  the  Empire. 

"  No  military  convention  has  been  concluded  with  Bavaria, 
in  a  special  instrument,  since  the  Federal  Treaty  of  the  23 
November,  1870,  contains  such  an  agreement  in  III.  §  5, 
with  the  Schlussprotokoll  thereof.  All  that  is  carried  out  in 
the  convention  with  Wurttemberg  is  given  force  in  this  agree- 
ment. The  provisions  of  this  section  of  the  Federal  Treaty 
are  declared  to  be  a  special  constitutional  right,  and  Bavaria 
has  a  special  right  —  Sonderrecht  —  to  the  maintenance  of 
these  provisions.  So  far  as  the  matter  of  it  goes,  the  'Son- 
derrecht' of  Bavaria  differs  from  that  of  Wurttemberg  very 
considerably,  for  in  the  Wurttemberg  convention  the  main 
point  is  the  application  of  the  provisions  of  the  Imperial 
Constitution,  while  in  the  agreement  with  Bavaria  it  is  the 
exclusion  of  those  provisions." 2 

1  Compare  Zorn,  Staatsr.  p.  526;  Brockhaus,  op.  cit.  p.  166;  also  Hanel, 
Studien,  I.  pp.  115  ff. 

*  For  a  list  of  the  military  conventions  in  force  at  present,  see  Laband, 
IV.  pp.  31,  32. 


CHAPTER  XIII 
THE    IMPERIAL  CONSTITUTION 

His  Majesty  the  King  of  Prussia,  in  the  name  of  the  North 
German  Bund,  His  Majesty  the  King  of  Bavaria,  His  Majesty 
the  King  of  Wiirttemberg,  His  Royal  Highness  the  Grand 
Duke  of  Baden,  and  His  Royal  Highness  the  Grand  Duke  of 
Hesse  and  by  Rhine  for  those  parts  of  the  Grand  Duchy 
lying  south  of  the  Main,  do  conclude  an  everlasting  Bund 
for  the  protection  of  the  federal  territory  and  of  the  rights 
valid  within  the  same,  as  well  as  for  the  furtherance  of  the 
welfare  of  the  German  people.  This  Bund  shall  bear  the 
name  of  the  German  Empire  and  shall  have  the  following 
Constitution :  — 

I.  FEDERAL  TERRITORY 

Article  i 

The  territory  of  the  Bund  shall  consist  of  the  States  of 
Prussia  with  Lauenburg,  Bavaria,  Saxony,  Wiirttemberg, 
Baden,  Hesse,  Mecklenburg-Schwcrin,  Saxe- Weimar,  Meck- 
lenburg-Strelitz,  Oldenburg,  Brunswick,  Saxe-Meiningen, 
Saxe-Altenburg,  Saxe-Coburg-Gotha,  Anhalt,  Schwarzburg- 
Rudolstadt,  Schwarzburg-Sonderhausen,  Waldeck,  Reuss 
alterer  Linie,  Reuss  jiingerer  Linie,  Schaumburg-Lippe, 
Lippe,  Liibeck,  Bremen,  and  Hamburg. 

403 


404  THE   GERMAN  EMPIRE 

II.  IMPERIAL  LEGISLATION 

Article  2 

Within  this  federal  territory  the  Empire  shall  exercise  the 
right  of  legislation  in  accordance  with  the  content  of  this 
Constitution,  and  with  the  effect  that  imperial  law  shall  take 
precedence  of  State  law.  The  laws  of  the  Empire  shall 
receive  their  binding  force  through  their  publication  by  the 
Empire,  which  shall  take  place  through  the  medium  of  an 
Imperial  Gazette.  So  far  as  no  other  time  is  indicated  in  the 
published  law  for  the  going  into  effect  of  the  same,  it  shall  take 
effect  on  the  fourteenth  day  following  the  expiration  of  the 
day  on  which  it  was  published  in  the  Imperial  Gazette  in 
Berlin. 

Article  3 

For  all  Germany  there  shall  exist  a  common  citizenship  — 
Indigenat  —  with  the  effect  that  the  members  (subjects, 
citizens)  of  each  State  in  the  Bund  shall  be  treated  in  every 
other  State  of  the  Bund  as  natives  and  shall  accordingly  be 
admitted  to  permanent  domicile,  to  the  pursuit  of  trade,  to 
public  office,  to  the  acquiring  of  land,  to  the  obtaining  of 
citizenship,  and  to  the  enjoyment  of  all  other  civil  rights,  under 
the  same  conditions  as  the  native  born,  and  with  reference 
to  the  prosecution  of  their  rights  and  the  protection  of  their 
rights  they  shall  be  treated  like  the  native  born. 

No  German  shall  be  limited  in  the  exercise  of  these  rights 
by  the  authority  of  his  native  State  or  by  the  authority  of 
any  other  State  of  the  Bund. 

The  regulations  which  have  reference  to  the  care  of  the 
poor  and  their  reception  into  the  local  communal  associa- 
tions, will  not  be  affected  by  the  principle  enunciated  in  the 
first  paragraph. 


THE  IMPERIAL  CONSTITUTION  405 

Likewise,  until  further  action,  the  treaties  in  force  between 
the  individual  States  with  reference  to  the  taking  charge  of 
persons  to  be  exported,  the  care  of  the  sick,  and  the  burial  of 
deceased  citizens,  shall  stand. 

With  regard  to  the  fulfilment  of  military  duty  in  relation  to 
the  home  State,  the  necessary  steps  will  be  ordered  in  the  way 
of  imperial  legislation. 

As  against  foreign  lands,  all  Germans  have  an  equal  claim 
upon  the  protection  of  the  Empire. 

Article  4 

The  following  matters  shall  be  under  the  supervision  of  the 
Empire  and  subject  to  the  legislation  of  the  same :  — 

(1)  Regulations  with  respect  to  free  migration;  matters  of 
domicile    and    settlement;     citizenship,   passports,  and    the 
police  surveillance  of  strangers ;  the  pursuit  of  trade,  including 
insurance,  so  far  as  these  matters  are  not  already  provided 
for  in  Art.  3  of  this  Constitution,  — •  in  Bavaria,  however, 
with  the  exclusion  of  matters  of  domicile  and  settlement  — 
likewise,  matters  pertaining  to  colonization  and  emigration  to 
foreign  lands; 

(2)  Legislation  with  respect  to  the  tariff,  commerce,  and 
those  taxes  to  be  applied  for  imperial  purposes; 

(3)  The  fixing  of  a  system  of  weights,  measures,  and  coin- 
age;  and  the  laying  down  of  principles  for  the  emission  of 
funded  and  unfunded  paper  money; 

(4)  General  regulations  with  reference  to  banking  matters ; 

(5)  Patents  for  inventions ; 

(6)  The  protection  of  intellectual  property; 

(7)  The  organization  of  a  common  protection  for  German 
trade  in  foreign  lands,  for  German  navigation  and  for  the 
flag  upon  the  high  seas,  and  the  arrangement  of  a  common 


406  THE  GERMAN   EMPIRE 

consular  representation,  which  shall  be  maintained  by  the 
Empire ; 

(8)  Railway  matters,  subject  to  the  reservations,  so  far  as 
Bavaria  is  concerned,  in  Art.  46,  and  the  construction  of  roads 
and  waterways  in  the  interest  of  public  defence  and  of  the 
general  traffic; 

(9)  Rafting  and  navigation  upon  waterways  common  to 
several  States  and  the  condition  of  the  same,  as  well  as  the 
river  and  other  water  dues ;  likewise  the  navigation  marks  — 
beacons,  barrels,  buoys,  and  other  marks; 

(10)  Postal    and    telegraph    matters, — in    Bavaria    and 
Wiirttemberg,  however,  only  in  accordance  with  the  provi- 
sions in  Art.  52 ; 

(n)  Regulations  with  respect  to  the  reciprocal  execution 
of  judgments  in  civil  matters  and  the  fulfilment  of  requisitions 
in  general; 

(12)  Also  with  respect  to  the  accrediting  of  public  docu- 
ments ; 

(13)  General  legislation  with  respect  to  the  whole  domain 
of  civil  and  criminal  law  and  legal  procedure ; 

(14)  The  imperial  military  establishment  and  the  navy; 

(15)  The  regulations  governing  the  medical  and  veterinary 
police ; 

(16)  The  laws  relating  to  the  press  and  the  right  of  asso- 
ciation. 

Article  5 

The  legislative  power  of  the  Empire  is  exercised  by  the 
Bundesrat  and  the  Reichstag.  The  consent  of  a  majority 
vote  of  both  assemblies  is  necessary  and  sufficient  for  the 
passage  of  a  law. 

In  bills  relating  to  military  affairs,  to  the  navy  and  to  the 
imposts  specified  in  Article  35,  the  vote  of  the  Praesidium 


THE   IMPERIAL  CONSTITUTION  407 

shall  decide  in  case  of  a  difference  of  opinion  in  the  Bundesrat, 
if  said  vote  is  cast  for  the  maintenance  of  the  existing  arrange- 
ments. 

III.  THE  BUNDESRAT 
Article   6 

The  Bundesrat  consists  of  representatives  of  the  members 
of  the  Bund,  among  whom  the  votes  shall  be  divided  in  such 
wise  that  Prussia,  with  the  former  votes  of  Hannover,  Kur- 
Hesse,  Holstein,  Nassau,  and  Frankfurt,  shall  have  17  votes; 
Bavaria,  6 ;  Saxony,  4 ;  Wiirttemberg,  4 ;  Baden,  3 ;  Hesse,  3 ; 
Mecklenburg-Schwerin,  2  ;  Saxe- Weimar,  i  ;  Mecklenburg- 
Strelitz,  i ;  Oldenburg,  i ;  Brunswick,  2 ;  Saxe-Meiningen,  i ; 
Saxe-Altenburg,  i  ;  Saxe-Coburg-Gotha,  i  ;  Anhalt,  i ; 
Schwarzburg-Rudolstadt,  i ;  Schwarzburg-Sonderhausen, 
i ;  Waldeck,  i ;  Reuss  alterer  Linie,  i ;  Reuss  j lingerer  Linie, 
i ;  Schaumburg-Lippe,  i ;  Lippe,  i ;  Liibeck,  i ;  Bremen,  i ; 
Hamburg,  i,  —  total,  58  votes. 

Each  member  of  the  Bund  may  appoint  as  many  pleni- 
potentiaries to  the  Bundesrat  as  it  has  votes,  but  the  vote 
accredited  to  each  State  shall  be  given  only  as  a  unit. 

Article   7 

The  Bundesrat  shall  take  action  upon 

(1)  Propositions  to  be  made  to  the  Reichstag,  and  the 
resolutions  passed  by  the  same; 

(2)  The  general  administrative  provisions   and  arrange- 
ments necessary  for  the  carrying  out  of  the  imperial  laws, 
so  far  as  it  is  not  otherwise  provided  for  by  law ; 

(3)  Defects  which  may  come  out  in  the  execution  of  the 
imperial  laws,  or  of  the  provisions  and  arrangements  hereto- 
fore mentioned. 


408  THE  GERMAN  EMPIRE 

Every  member  of  the  Bund  is  empowered  to  make  propo- 
sitions and  to  speak  to  them,  and  the  Praesidium  is  bound  to 
submit  them  to  deliberation. 

Decisions  shall  be  had  by  simple  majority,  with  the  excep- 
tions provided  for  in  Arts.  5,  37,  and  78.  Votes  not  repre- 
sented or  not  instructed  shall  not  be  counted.  In  case  of 
a  tie  the  vote  of  the  Praesidium  shall  decide. 

When  action  is  taken  with  reference  to  a  matter  which, 
according  to  the  provisions  of  this  Constitution,  is  not  com- 
mon to  the  whole  Empire,  the  votes  of  those  States  alone 
shall  be  counted  which  the  matter  jointly  concerns. 

Article  8 

The  Bundesrat  shall  appoint  from  its  own  members  per- 
manent Committees:  — 

(1)  On  the  Army  and  Fortifications. 

(2)  On  Marine  Affairs. 

(3)  On  Customs  Duties  and  Taxes. 

(4)  On  Commerce  and  Traffic. 

(5)  On  Railways,  Post,  and  Telegraph. 

(6)  On  Judicial  Affairs. 

(7)  On  Accounts. 

In  each  of  these  Committees  at  least  four  States  shall  be 
represented,  besides  the  Praesidium,  and  within  the  same 
each  State  shall  have  but  one  vote.  In  the  Committee  on 
the  Army  and  Fortifications,  Bavaria  shall  have  a  permanent 
seat;  the  remaining  members  of  the  Committee,  as  well  as 
the  members  of  the  Committee  on  Marine  Affairs,  shall  be 
appointed  by  the  Kaiser;  the  members  of  the  other  Com- 
mittees shall  be  elected  by  the  Bundesrat.  The  composi- 
tion of  these  Committees  is  to  be  renewed  at  each  session 
of  the  Bundesrat,  i.e.,  each  year,  whereupon  the  retiring 
members  shall  be  reeligible. 


THE  IMPERIAL  CONSTITUTION  409 

In  addition  there  shall  be  formed  in  the  Bundesrat,  out  of 
the  plenipotentiaries  of  the  kingdoms  of  Bavaria,  Saxony, 
and  Wiirttemberg,  and  two  plenipotentiaries  to  be  elected 
each  year  from  the  other  States,  a  Committee  on  Foreign 
Affairs,  in  which  Bavaria  shall  have  the  chair. 

The  necessary  officials  for  carrying  out  their  work  shall 
be  placed  at  the  disposal  of  the  Committees. 

Article  9 

Every  member  of  the  Bundesrat  has  the  right  to  appear 
in  the  Reichstag,  and  must  be  heard  there  at  any  time  upon 
his  request,  in  order  to  represent  the  views  of  his  Govern- 
ment, even  when  the  same  shall  not  have  been  adopted  by  a 
majority  of  the  Bundesrat.  No  one  shall  be  at  the  same 
time  a  member  of  the  Bundesrat  and  of  the  Reichstag. 

Article  10 

It  is  incumbent  upon  the  Kaiser  to  guarantee  to  the  mem- 
bers of  the  Bundesrat  the  usual  diplomatic  protection. 


IV.  THE  PRAESIDIUM 
Article  n 

The  Praesidium  of  the  Bund  belongs  to  the  King  of  Prussia, 
who  shall  bear  the  title  German  Kaiser.  It  shall  be  the  duty 
of  the  Kaiser  to  represent  the  Empire  among  the  nations,  to 
declare  war  and  conclude  peace  in  the  name  of  the  Empire, 
to  enter  into  alliances  and  treaties  with  foreign  States,  to 
accredit  and  receive  ambassadors. 

For  the  declaration  of  war  in  the  name  of  the  Empire  the 


4IO  THE  GERMAN  EMPIRE 

consent  of  the  Bundesrat  is  required,  unless  an  attack  is 
made  upon  the  federal  territory  or  its  coasts. 

So  far  as  treaties  with  foreign  States  relate  to  matters  which, 
according  to  Art.  4,  belong  to  the  sphere  of  imperial  legisla- 
tion, the  consent  of  the  Bundesrat  is  required  for  their  conclu- 
sion and  the  approval  of  the  Reichstag  is  necessary  for  their 
validity. 

Article  12 

It  is  the  right  of  the  Kaiser  to  convene,  to  open,  to  adjourn, 
and  to  close  the  Bundesrat  and  the  Reichstag. 

Article  13 

The  convening  of  the  Bundesrat  and  of  the  Reichstag  shall 
take  place  annually,  and  the  Bundesrat  may  be  summoned 
for  the  preparation  of  business  without  the  Reichstag;  but 
the  latter  shall  not  be  convened  without  the  Bundesrat. 


Article  14 

The  Bundesrat  must  be  convened  whenever  a  meeting  is 
demanded  by  one-third  of  the  total  number  of  votes. 

Article  15 

The  chairmanship  in  the  Bundesrat  and  the  conduct  of 
business  belongs  to  the  Imperial  Chancellor,  who  is  to  be 
appointed  by  the  Kaiser. 

The  Imperial  Chancellor  has  the  right  to  delegate  the  power 
to  represent  him  to  any  other  member  of  the  Bundesrat. 
This  delegation  shall  be  made  in  writing. 


THE  IMPERIAL  CONSTITUTION  411 

Article  16 

The  necessary  bills  shall,  in  accordance  with  the  resolutions 
of  the  Bundesrat,  be  laid  by  the  Kaiser  before  the  Reichstag, 
where  they  shall  be  represented  by  members  of  the  Bun- 
desrat or  by  special  commissioners  appointed  by  them. 

Article  17 

It  is  the  business  of  the  Kaiser  to  engross  and  publish  the 
imperial  laws  and  to  supervise  the  carrying  out  of  the  same. 
The  orders  and  decrees  of  the  Kaiser  shall  be  promulgated 
in  the  name  of  the  Empire,  and  require  for  their  validity  the 
counter- signature  of  the  Imperial  Chancellor,  who  thereby 
assumes  the  responsibility. 

Article  18 

The  Kaiser  appoints  the  imperial  officials,  administers  the 
oath  for  the  Empire,  and  orders  their  dismissal  should  such 
case  be  necessary. 

State  officials  called  to  an  imperial  office  shall  enjoy,  so 
far  as  has  not  been  otherwise  determined  by  imperial  legis- 
lation prior  to  their  entry  into  the  imperial  service,  the  same 
rights  in  the  Empire  which  belonged  to  them  in  their  own  State 
by  virtue  of  their  official  position. 

Article  19 

When  members  of  the  Bund  do  not  fulfil  their  constitu- 
tional duties  as  members  of  the  federation,  they  may  be 
compelled  to  perform  them  through  an  "execution."  This 
execution  is  to  be  determined  upon  by  the  Bundesrat  and 
carried  out  by  the  Kaiser. 


412  THE  GERMAN   EMPIRE 

V.  THE  REICHSTAG 
Article  20 

The  Reichstag  is  the  result  of  a  general  and  direct  ballot 
with  secret  vote. 

Until  the  legal  regulation,  which  is  reserved  in  §  5,  of  the 
Election  Law  of  31  May,  1869  (Bundesgesesetzblatt,  1869,  p. 
145),  there  shall  be  elected  in  Bavaria  48  delegates;  in  Wiirt- 
temberg,  17;  in  Baden,  14;  and  in  Hesse  south  of  the  Main, 
6 ;  and  the  total  number  of  votes  shall  accordingly  amount  to 
382.' 

Article  21 

Officials  shall  not  require  a  leave  of  absence  in  order  to 
enter  the  Reichstag. 

When  a  member  of  the  Reichstag  accepts  a  salaried  office 
under  the  Empire,  or  in  one  of  the  States  of  the  Bund,  or 
enters  the  service  of  the  Empire,  or  of  a  State,  in  an  office 
with  which  a  higher  rank  or  higher  salary  is  connected,  he 
thereupon  loses  his  seat  and  vote  in  the  Reichstag,  and  can 
acquire  his  place  in  the  same  only  through  a  new  election. 

Article  22 

The  transactions  of  the  Reichstag  are  public. 
Truthful  reports  of  the  proceedings  of  the  Reichstag  in  the 
public  sittings  remain  free  from  every  responsibility. 

Article  23 
The  Reichstag  has  the  right  to  propose  laws  within  the 

1  This  number  is  now  397,  counting  in  the  delegates  from  Alsace-Lor- 
raine. 


THE   IMPERIAL  CONSTITUTION  413 

competence  of  the  Empire,  and  to  transmit  to  the  Bundesrat 
or  to  the  Imperial  Chancellor  petitions  directed  to  it. 

Article  24 

The  legislative  period  of  the  Reichstag  lasts  for  five  years. 
For  the  dissolution  of  the  Reichstag  during  this  period  a 
resolution  of  the  Bundesrat  is  required  together  with  the  con- 
sent of  the  Kaiser. 

Article  25 

In  case  of  a  dissolution  of  the  Reichstag,  the  voters  shall  be 
called  together  within  a  period  of  sixty  days  after  the  dissolu- 
tion, and  the  Reichstag  shall  be  assembled  within  ninety  days 
after  the  dissolution. 

Article  26' 

Without  the  consent  of  the  Reichstag,  an  adjournment  of 
that  body  shall  not  exceed  a  period  of  thirty  days,  and  shall 
not  be  repeated  during  the  same  session. 

Article  27 

The  Reichstag  shall  prove  the  legitimation  of  its  own  mem- 
bers and  decide  thereon.  It  regulates  its  own  procedure  and 
its  discipline  through  its  order  of  business,  and  elects  its 
president,  vice-presidents,  and  secretaries. 

Article  28 

The  Reichstag  shall  decide  questions  by  absolute  majority. 
For  the  validity  of  any  action  the  presence  of  a  majority  of 
the  statutory  number  of  members  is  required. 


414  THE  GERMAN  EMPIRE 

Article  29 

The  members  of  the  Reichstag  are  representatives  of  the 
whole  people,  and  are  not  bound  by  propositions  and  instruc- 
tions. 

Article  30 

No  member  of  the  Reichstag  shall  be  prosecuted,  either 
legally  or  by  way  of  discipline,  at  any  time,  because  of  his 
vote,  or  because  of  any  utterance  made  in  the  exercise  of 
his  functions,  or  in  any  other  manner  be  held  responsible 
outside  the  assembly. 

Article  31 

Without  the  consent  of  the  Reichstag,  no  member  of  it,  dur- 
ing the  session,  shall  be  brought  to  trial  or  arrested,  because 
of  a  penal  offence,  unless  he  is  taken  hi  the  commission  of  the 
act  or  during  the  course  of  the  following  day. 

Like  consent  is  required  in  the  case  of  arrest  for  debt. 

At  the  request  of  the  Reichstag,  all  criminal  proceeding 
against  one  of  its  members,  and  all  detentions  for  judicial 
inquiry  or  civil  action,  shall  be  suspended  during  the  session. 

Article  32 

The  members  of  the  Reichstag  as  such,  shall  draw  no  salary 
or  compensation. 

VI.  CUSTOMS  AND  COMMERCE 
Article  33 

Germany  forms  one  territory  for  customs  and  commerce, 
defined  by  a  common  tariff  boundary.  Those  parts  of 
the  territory  which,  by  reason  of  their  situation,  cannot 


THE  IMPERIAL  CONSTITUTION  415 

properly  be  embraced  within  the  customs  frontier,  shall  be 
excluded. 

All  articles  of  free  commerce  in  any  State  of  the  Union  may 
be  brought  into  any  other  State  of  the  Union,  and  in  the  latter 
shall  be  subjected  to  an  impost  only  in  so  far  as  similar  domes- 
tic productions  are  subject  to  an  internal  tax  there. 

Article  34 

The  Hanse  cities,  Bremen  and  Hamburg,  together  with  a 
part  of  their  own  or  of  the  surrounding  territory  suitable  for 
such  purpose,  shall  remain  free  ports  outside  the  common 
tariff  borders,  until  such  time  as  they  shall  request  admis- 
sion into  the  same. 

Article  35 

The  Empire  has  the  exclusive  right  of  legislation  as  to  all 
tariff  matters ;  as  to  the  taxation  of  salt  and  tobacco  produced 
in  the  federal  territory ;  as  to  prepared  brandy  and  beer,  and 
sugars  and  syrups  produced  from  beets  or  other  domestic 
sources;  as  to  the  mutual  protection,  against  fraud,  of  the 
consumption  taxes  levied  in  the  several  States  of  the  Bund, 
as  well  as  to  the  regulations  which  may  be  required  in  the 
excluded  districts  for  the  security  of  the  common  customs 
boundaries. 

In  Bavaria,  Wiirttemberg,  and  Baden,  the  right  to  tax  the 
domestic  brandies  and  beers  is  reserved  to  the  legislation 
of  the  State.  The  States  will,  however,  use  every  effort  to 
bring  about  uniform  legislation  with  regard  to  the  taxation 
of  these  articles  also. 

Article  36 

The  collection  and  administration  of  the  customs  duties  and 
of  the  taxes  on  articles  of  consumption  (Art.  35)  is  left  to 


416  THE  GERMAN  EMPIRE 

each  State,  within  its  own  territory,  so  far  as  these  functions 
have  heretofore  been  exercised  by  each  State. 

The  Kaiser  supervises  the  observance  of  the  legal  conduct 
of  affairs,  by  means  of  imperial  officials,  whom  he  appoints, 
with  the  consent  of  the  Committee  of  the  Bundesrat  on  Cus- 
toms Duties  and  Taxes,  to  act  in  conjunction  with  the  officials 
and  Directive  Boards  of  the  several  States. 

Reports  made  by  these  officials  as  to  defects  in  the  carry- 
ing out  of  the  joint  legislation  (Art.  35),  shall  be  laid  before 
the  Bundesrat  for  action. 

Article  37 

In  taking  action  with  reference  to  the  administrative  pro- 
visions and  arrangements  for  carrying  out  the  joint  legisla- 
tion (Art.  35),  the  vote  of  the  Praesidium  decides  when  it  is 
cast  in  favor  of  maintaining  the  existing  provision  or  ar- 
rangement. 

Article  38 

The  revenues  from  the  customs  and  from  the  other  taxes 
mentioned  in  Art.  35,  so  far  as  these  latter  are  subject  to  im- 
perial legislation,  flow  into  the  treasury  of  the  Empire. 

This  amount  consists  of  the  total  income  from  the  customs 
and  from  the  other  taxes,  after  deducting  therefrom :  — 

(1)  The  tax  allowances  and  reductions  resting  upon  the 
laws  or  general  administrative  provisions. 

(2)  Reimbursements  for  taxes  unlawfully  collected. 

(3)  The  costs  of  collection  and  of  administration,  viz. :  — 
(a)  In  the  department  of  customs,  the  costs  required  for 

the  protection,  and  for  the  collecting,  of  the  duties  on  the 

borders  of  a  foreign  country  and  in  the  district  adjacent  thereto. 

(6)  In  the  department  of  the  salt  tax,  the  costs  which  are 


THE  IMPERIAL  CONSTITUTION  417 

applied  toward  the  salaries  of  the  officials  charged  with  the 
collection  and  control  of  this  tax  at  the  salt  works. 

(c)  In  the  department  of  the  beet- sugar  tax  and  the  tobacco 
tax,  the  compensation  which,  according  to  the  regulations  of 
the  Bundesrat  at  the  time,  are  to  be  guaranteed  to  the  gov- 
ernments of  the  several  States  of  the  Union  for  the  costs  of 
administering  these  taxes. 

(d)  In  the  other  tax  departments,  fifteen  per  cent  of  the 
total  receipts. 

The  territories  lying  outside  the  common  customs  borders 
contribute  to  the  expenses  of  the  Empire  by  the  payment  of 
a  lump  sum  (Aver sum). 

Bavaria,  Wiirttemberg,  and  Baden  have  no  share  in  the 
revenues  flowing  into  the  imperial  treasury  from  the  taxes 
on  brandy  and  beer  nor  in  that  part  of  the  aforementioned 
Aversum  corresponding  to  this  amount. 

Article  39 

The  quarterly  abstracts  to  be  made  by  the  collection  officials 
of  the  States  at  the  end  of  each  quarter,  and  the  final  state- 
ment, to  be  drawn  up  at  the  end  of  each  year,  and  after  the 
closing  of  the  books,  of  the  receipts  which  have  fallen  due 
during  the  quarter  or  during  the  fiscal  year,  as  the  case  may  be, 
from  customs  and  from  the  taxes  on  articles  of  consumption 
which,  according  to  Art.  38,  flow  into  the  imperial  treasury, 
shall  be  grouped  by  the  Directive  Boards  of  the  States,  after 
a  preliminary  audit,  into  general  summaries,  in  which  each 
impost  is  to  be  separately  indicated,  and  these  summaries  are 
to  be  sent  in  to  the  Bundesra?  s  Committee  on  Accounts. 

The  latter  fixes  provisionally,  every  three  months,  on  the 
basis  of  these  summaries,  the  amount  due  the  imperial 
treasury  from  each  State  in  the  Bund,  and  informs  the 


41 8  THE  GERMAN   EMPIRE 

Bundesrat,  and  the  States,  of  the  amount  fixed ;  it  also  lays 
its  final  determination  of  these  amounts,  with  its  remarks, 
annually  before  the  Bundesrat.  The  Bundesrat  takes  action 
on  the  fixing  of  the  amounts. 

Article  40 

The  stipulations  in  the  Customs  Union  Treaty  of  8  July, 
1867,  remain  in  force,  so  far  as  they  have  not  been  amended 
by  the  provisions  of  this  Constitution,  and  so  long  as  they 
shall  not  have  been  amended  in  the  manner  provided  for  in 
Arts.  7  and  78. 

VII.  RAILWAY  MATTERS 
Article  41 

Railways,  which  are  considered  necessary  for  the  defence 
of  Germany  or  in  the  interests  of  general  traffic,  may  be  con- 
structed at  the  expense  of  the  Empire,  even  against  the  oppo- 
sition of  that  member  of  the  Bund  through  whose  territory 
the  railway  cuts,  without  prejudice  to  the  sovereign  rights  of 
the  State ;  or  may  be  granted  as  a  concession  to  private  per- 
sons for  construction  and  furnished  with  rights  of  expropria- 
tion. 

Every  existing  railway  is  bound  to  grant  connection  with  it 
of  newly  constructed  lines,  at  the  cost  of  the  latter. 

The  legal  regulations  which  grant  to  existing  railway 
undertakings  a  right  of  injunction  against  the  laying  of  par- 
allel or  competing  lines,  are  hereby  repealed  for  the  whole  Em- 
pire, without  prejudice  to  the  rights  already  acquired.  Such 
a  right  of  injunction  cannot  be  further  granted,  even  in  con- 
cessions to  be  given  in  the  future. 


THE  IMPERIAL  CONSTITUTION  419 

Article  42 

The  governments  of  the  several  States  bind  themselves  to 
administer  the  German  railways  in  the  interest  of  the  general 
traffic,  as  a  single  system,  and  to  this  end  shall  cause  the  rail- 
ways newly  to  be  constructed  to  be  built  and  equipped 
according  to  a  uniform  standard. 


Article  43 

To  this  end  there  shall  be  made,  as  speedily  as  possible, 
uniform  traffic  regulations,  and  especially  shall  identical 
railway  police  rules  be  put  in  force.  The  Empire  shall  see 
to  it  that  the  railway  administrations  shall  keep  the  roads 
always  in  a  condition  which  shall  guarantee  the  necessary 
safety,  and  shall  furnish  them  with  such  equipment  as  the 
needs  of  traffic  may  demand. 

Article  44 

The  railway  administrations  are  bound  to  furnish  passenger 
trains  of  suitable  speed,  necessary  for  through  traffic  and  for 
the  securing  of  connecting  time  tables;  in  the  same  way  to 
provide  trains  necessary  for  the  conduct  of  freight  business,  as 
well  as  to  arrange  for  the  direct  forwarding  of  passengers 
and  of  freight,  providing  a  system  of  transfer  from  one  train  to 
another  for  the  usual  remuneration. 


Article  45 

The  control  of  the  tariff  charges  shall  be  in  the  hands  of  the 
Empire.     It  shall  work  to  this  end :  — 
(i)  That  at  the  earliest  possible  moment  uniform  regu- 


420  THE   GERMAN   EMPIRE 

lations  governing  the  business  shall  be  introduced  on  a'.l 
German  railways. 

(2)  That  the  tariff  charges  be  minimized  and  equalized 
as  speedily  as  possible,  especially  that,  in  the  long  distance 
transportation  of  coal,  coke,  wood,  ore,  stone,  salt,  pig-iron, 
manures,  and  similar  articles,  a  tariff  shall  be  introduced 
suitably  modified  to  the  needs  of  farming  and  of  industry,  and 
indeed,  at  the  first  practicable  moment,  the  one  pfennig 
tariff. 

Article  46 

When  conditions  of  distress  shall  arise,  especially  an  un- 
usual rise  in  the  price  of  provisions,  the  railroads  shall  be 
bound  to  introduce  temporarily  a  low  special  tariff,  suited 
to  the  necessities  of  the  case,  and  to  be  fixed  by  the  Kaiser 
on  motion  of  the  competent  Committee  of  the  Bundesrat, 
for  the  transport  of  grain,  flour,  legumes,  and  potatoes, 
which  price,  however,  shall  not  be  less  than  the  lowest  existing 
rate  for  raw  products  over  the  said  line. 

The  aforesaid  provisions,  as  well  as  those  found  in  Arts. 
42  to  45,  have  no  application  to  Bavaria. 

The  imperial  government  has  the  right,  however,  even  as 
against  Bavaria,  to  lay  down  by  law  uniform  standards  for 
the  construction  and  equipment  of  railways  which  may  be 
of  importance  in  the  defence  of  the  country. 

Article  47 

All  the  administrative  authorities  of  the  railways  shall 
yield  implicit  obedience  to  the  demands  of  the  imperial 
authorities,  with  respect  to  the  use  of  the  railways  for  the 
purpose  of  the  defence  of  Germany.  Especially  shall 
troops  and  all  materials  of  war  be  forwarded  at  uniform 
reduced  rates. 


THE   IMPERIAL  CONSTITUTION  421 

VIII.  POST  AND  TELEGRAPH 
Article  48 

The  post  and  telegraph  systems  shall  be  arranged  and 
administered  throughout  the  entire  German  Empire  as 
uniform  institutions  of  public  intercourse. 

The  legislation  of  the  Empire  in  post  and  telegraph  matters, 
as  provided  for  in  Art.  4,  shall  not  extend  to  those  matters 
whose  regulation  is  left  to  governmental  determination  and 
administrative  ordinance,  in  accordance  with  the  principles 
which  have  been  authoritative  in  the  administration  of  the 
post  and  telegraph  in  the  North  German  Bund. 

Article  49 

The  revenues  from  the  post  and  telegraph  systems  for  the 
whole  Empire  shall  belong  to  a  common  fund.  The  expenses 
shall  be  paid  out  of  the  joint  income.  The  surplus  shall 
flow  into  the  imperial  treasury  (§  XII.). 

Article  50 

To  the  Kaiser  shall  belong  the  supreme  control  of  the 
post  and  telegraph  administration.  It  shall  be  the  duty 
and  the  right  of  the  authorities  appointed  by  him  to  see  to 
it  that  uniformity  in  the  organization  of  the  administration 
and  in  the  conduct  of  the  business,  as  well  as  in  the  qualifica- 
tion of  the  officials,  is  established  and  maintained. 

The  Kaiser  shall  have  power  to  issue  governmental  deci- 
sions and  general  administrative  ordinances,  as  well  as  the 
exclusive  supervision  of  the  relations  with  other  post  and 
telegraph  administrations. 


422  THE  GERMAN   EMPIRE 

All  officials  of  the  post  and  telegraph  administration  are 
bound  to  obey  the  imperial  orders.  This  obligation  is 
assumed  in  the  oath  of  office. 

The  appointment  of  such  superior  officers  in  the  various 
districts  as  may  be  required  by  the  administrative  authorities 
of  the  post  and  telegraph,  for  instance,  the  directors,  counsel- 
lors, superintendents,  and,  further,  the  appointment  of  the 
officials  of  the  post  and  telegraph  who  shall  act  in  the  capacity 
of  organs  of  the  aforesaid  authorities  in  maintaining  the 
supervisory  and  other  service  in  the  several  districts,  such 
as  inspectors,  controllers,  shall  be  made  throughout  the 
Empire  by  the  Kaiser,  to  whom  these  officials  shall  take  the 
oath  of  office.  Due  notice  shall  be  given  to  the  several 
State  governments,  of  the  aforementioned  appointments, 
so  far  as  they  may  affect  their  territory,  in  order  that  they 
may  be  ratified  and  published  by  the  ruler  thereof. 

The  other  officials  required  by  the  post  and  telegraph 
administrative  authorities,  as  well  as  those  destined  for  the 
local  and  technical  work,  including  those  officials  acting  at 
the  stations  proper,  and  so  forth,  shall  be  appointed  by  the 
State  governments  concerned. 

Where  an  independent  State  post  and  telegraph  administra- 
tion does  not  exist,  the  provisions  of  special  treaties  shall  be 
decisive. 

Article  51 

In  consideration  of  the  differences  hitherto  existent  with 
respect  to  the  net  income  received  from  the  State  postal 
administrations  of  the  several  districts,  the  following  method 
of  procedure  shall  be  observed  in  assigning  the  surplus 
of  the  postal  administration  for  general  imperial  purposes 
(Art.  49),  to  the  end  that  a  corresponding  equalization  may 
be  had  during  the  transition  period  fixed  below. 


THE  IMPERIAL  CONSTITUTION  433 

From  the  postal  surpluses  which  have  accumulated  in 
the  several  postal  districts  during  the  five  years,  1861-1865, 
a  yearly  average  shall  be  computed,  and  the  share  which 
each  individual  postal  district  has  had  in  the  postal  surpluses 
for  the  whole  Empire  resulting  therefrom  shall  be  fixed 
according  to  percentage. 

On  the  basis  of  the  ratio  thus  determined,  the  quota 
ascribed  to  the  several  States,  out  of  the  accumulated  postal 
surpluses  of  the  Empire,  shall,  for  the  eight  years  following 
their  entry  into  the  imperial  postal  administration,  be  credited 
to  the  contributions  which  they  would  otherwise  make  for 
imperial  purposes. 

At  the  end  of  eight  years  this  distinction  shall  cease,  and 
the  postal  surpluses  shall  flow  into  the  imperial  treasury, 
without  division,  in  accordance  with  the  principle  laid  down 
in  Art.  49. 

Of  the  quota  of  postal  surpluses  arising  in  favor  of  the 
Hanse  cities  during  the  aforesaid  eight  years,  one-half 
shall  be  placed  at  the  disposal  of  the  Kaiser,  at  the  beginning 
of  each  year,  chiefly  for  the  purpose  of  meeting  the  expense 
involved  in  providing  regular  postal  arrangements  in  the 
Hanse  cities. 

Article  52 

The  provisions  of  the  foregoing  Arts.  48  to  51  do  not  apply 
to  Bavaria  and  Wiirttemberg.  In  place  of  them  the  follow- 
ing provisions  shall  be  valid  for  both  these  federal  States. 

Legislation  with  respect  to  the  privileges  of  the  post  and 
telegraph,  the  legal  relations  of  both  institutions  to  the  public, 
the  franking  privileges  and  the  post  charges,  as  well  as  the 
fixing  of  the  fees  for  telegraphic  correspondence,  shall  belong 
exclusively  to  the  Empire,  with  the  exception,  however, 
of  the  administrative  regulations  and  the  determination  of 


424  THE  GERMAN  EMPIRE 

tariffs  for  the  internal  communication  within  Bavaria  and 
Wiirttemberg. 

Likewise  the  regulation  of  the  postal  and  telegraphic  com- 
munication with  foreign  lands  shall  belong  to  the  Empire, 
with  the  exception  of  Bavaria's  and  Wiirttemberg's  own 
immediate  traffic  with  neighboring  States  not  belonging  to 
the  Empire,  the  regulation  of  which  is  governed  by  the  pro- 
visions of  Art.  49  of  the  Postal  Treaty  of  23  November,  1867. 

In  the  income  from  the  post  and  telegraph  flowing  into 
the  imperial  treasury,  Bavaria  and  Wiirttemberg  have  no 
share. 

IX.  MARINE  AND  NAVIGATION 
Article  53 

The  navy  of  the  Empire  is  a  unitary  one  under  the  supreme 
command  of  the  Kaiser.  The  organization  and  composition 
of  it  shall  be  the  duty  of  the  Kaiser,  who  appoints  the  officers 
and  officials  of  the  navy,  and  to  whom  they,  together  with  the 
crews,  take  an  oath  of  obedience. 

The  harbor  of  Kiel  and  that  of  Jade  are  imperial  war 
ports. 

The  requisite  expense  for  the  establishment  and  main- 
tenance of  the  fleet  and  the  arrangements  connected  there- 
witn  shall  be  defrayed  out  of  the  imperial  treasury. 

All  the  seafaring  male  population  of  the  Empire,  including 
the  machinists  and  ship  laborers,  is  exempt  from  service  in 
the  army,  but  is  liable  to  service  in  the  imperial  navy.1 

1  Article  53  contained  another  paragraph,  which  was  omitted  by  the 
amendment  of  26  May,  1893.  The  paragraph  read:  — 

"Die  Vertheilung  des  Ersatzbedarfes  findet  nach  Massgabe  der  vor- 
handenen  seemannischen  Bevolkerung  statt,  und  die  hiernach  von  jedem 
Staate  gestellte  Quote  kommt  auf  die  Gestellung  zum  Landheere  in  Ab- 
rechnung." 


THE  IMPERIAL  CONSTITUTION  425 

Article  54 

The  merchantmen  of  all  the  federated  States  shall  con- 
stitute a  united  commercial  marine. 

The  Empire  shall  determine  the  process  for  ascertaining 
the  tonnage  of  sea-going  vessels,  shall  regulate  the  making 
out  of  certificates  of  admeasurement  as  well  as  of  ship  cer- 
tificates, and  shall  fix  the  conditions  on  which  permission  to 
sail  a  sea-going  ship  shall  be  granted. 

The  merchantmen  of  all  the  federated  States  shall  be 
granted  like  access  to,  and  accorded  similar  treatment  in, 
the  seaports  and  all  natural  and  artificial  watercourses 
of  the  several  States  of  the  Bund.  The  taxes  which  shall 
be  levied  upon  the  ships  or  their  cargoes  in  the  harbors, 
for  the  use  of  the  institutions  of  navigation,  shall  not  exceed 
the  cost  necessary  for  the  maintenance  and  ordinary  repairs 
of  these  establishments. 

On  all  the  natural  watercourses,  taxes  may  be  levied 
only  for  the  use  of  special  establishments  which  are  designed 
for  the  facilitating  of  traffic.  These  taxes,  as  well  as  the 
taxes  for  the  navigation  of  such  artificial  watercourses 
as  may  belong  to  the  State,  shall  not  exceed  the  cost  necessary 
for  the  maintenance  and  the  usual  repairs  of  these  institu- 
tions and  establishments.  These  provisions  apply  to  rafting, 
in  so  far  as  it  is  carried  on  upon  navigable  watercourses. 

The  power  to  lay  other  or  higher  taxes  upon  foreign  ships, 
or  their  cargoes,  than  upon  the  ships  of  the  federated  States 
or  their  cargoes,  belongs  only  to  the  Empire  and  not  to  any 
one  of  the  States. 

Article  55 

The  flag  of  the  navy  and  of  the  merchant  marine  is  black, 
white,  red. 


426  THE  GERMAN   EMPIRE 

X.    CONSULAR  AFFAIRS 
Article  56 

All  consular  affairs  are  under  the  supervision  of  the  Kaiser, 
who  appoints  the  consuls,  after  hearing  the  Committee  of 
the  Bundesrat  on  Commerce  and  Traffic. 

In  the  official  districts  of  the  German  consuls,  no  new 
State  consulates  may  be  erected.  The  German  consuls 
exercise  all  the  functions  of  a  State  consul  for  the  federated 
States  not  represented  in  their  districts.  All  the  State 
consulates  now  existent  shall  be  abolished  as  soon  as  the 
organization  of  the  German  consulates  shall  be  completed 
in  such  manner  that  the  representation  of  the  particular 
interests  of  all  federated  States  shall  be  recognized  by  those 
States  as  secured  through  the  German  consulate. 

XI.  MILITARY  AFFAIRS  OF  THE  EMPIRE 
Article  57 

Every  German  is  liable  to  military  duty  and  in  the  discharge 
of  this  duty  no  substitute  can  be  accepted. 

Article  58 

The  costs  and  burdens  of  the  entire  military  system  of  the 
Empire  are  to  be  borne  by  all  the  federated  States  and  their 
subjects  equally,  in  such  manner  that  neither  preference  nor 
special  burden  upon  any  individual  State  or  class  shall  be 
in  principle  permissible.  Where  an  equal  distribution  of 
the  burdens  cannot  be  brought  about  in  natura  without 
injury  to  the  public  welfare,  the  equalization  is  to  be  effected 
by  legislation  according  to  principles  of  fairness. 


THE  IMPERIAL  CONSTITUTION  427 

Article  59 

Every  German  capable  of  bearing  arms  shall  belong  for 
seven  years  to  the  standing  army,  as  a  rule  from  the  com- 
pletion of  his  twentieth  to  the  beginning  of  his  twenty-eighth 
year.  During  the  next  five  years  he  shall  belong  to  the 
"  national  guard  (Landwehr)  of  the  first  call,"  and  then,  up  to 
the  31  March  of  that  year  in  which  he  shall  have  completed  his 
thirty-ninth  year,  to  the  national  guard  of  the  "second  call." 

During  the  period  of  service  in  the  standing  army  the 
cavalrymen  and  the  mounted  artillerymen  are  bound  to 
uninterrupted  service  with  the  colors  the  first  three  years,  all 
others  the  first  two  years.1 

In  those  States  of  the  Bund  in  which  heretofore  a  longer 
term  of  total  sendee  than  twelve  years  was  required  by  law, 
the  gradual  reduction  of  the  term  of  liability  to  service 
shall  take  place  only  so  far  as  this  is  compatible  with  due 
regard  for  the  readiness  of  the  imperial  army  for  war. 

With  reference  to  the  emigration  of  men  belonging  to  the 
reserves,  simply  those  provisions  shall  be  authoritative  which 
control  the  emigration  of  members  of  the  national  guard 
(Landwehr). 

Article  60 

The  number  of  men  in  the  German  army  in  time  of  peace 
shall  be  fixed,  up  to  31  December,  1871,  at  one  per  cent  of 
the  population  of  1867,  and  shall  be  furnished  by  the  several 
States  of  the  Bund  in  proportion  to  their  population.  After 
that  date  the  effective  force  of  the  army  in  time  of  peace 
shall  be  fixed  by  imperial  law. 

Article  61 

After  the  publication  of  this  Constitution,  the  entire 
Prussian  military  legislation  shall  be  introduced  without 

'Amendment  of  15  April,  1905. 


428  THE  GERMAN   EMPIRE 

delay  throughout  the  entire  Empire,  —  the  laws  themselves 
as  well  as  the  rules,  instructions,  and  rescripts  issued  for  their 
execution,  explanation,  or  completion,  to  wit,  the  Military 
Penal  Code  of  3  April,  1845,  tne  Military  Code  of  Criminal 
Procedure  of  3  April,  1845,  the  Ordinance  respecting  Courts 
of  Honor  of  20  July,  1843,  the  provisions  for  recruiting, 
time  of  service,  matters  of  allowances  and  the  commissariat, 
the  quartering  of  troops,  compensation  for  injury  done  to 
fields,  for  the  mobilizing  of  troops,  etc.,  in  peace  and  in  war. 
The  military  ordinance  with  respect  to  religious  observ- 
ances is,  however,  excepted. 

On  the  completion  of  a  uniform  military  organization  of 
the  German  army,  a  comprehensive  imperial  military  law 
shall  be  laid  before  the  Reichstag  and  the  Bundesrat  for  their 
action,  in  conformity  to  the  Constitution. 

Article  62 

For  meeting  the  expenses  of  the  entire  German  army 
and  the  arrangements  incident  thereto,  there  shall  be 
placed  annually  at  the  disposal  of  the  Kaiser,  up  to  31 
December,  1871,  as  many  times  225  thalers,  —  in  words, 
two  hundred  and  twenty-five  thalers,  —  as  the  numerical 
strength  of  the  army  on  a  peace  footing,  according  to  Art.  60, 
amounts  to.  See  §  XII. 

After  the  31  December,  these  contributions  must  be  paid 
by  the  several  States  of  the  Bund  into  the  imperial  treasury. 
In  computing  the  same,  the  peace  footing  of  the  army, 
temporarily  fixed  in  Art.  60,  shall  be  adhered  to  until  it  is 
altered  by  imperial  law. 

The  expenditure  of  these  sums  for  the  entire  imperial 
army  and  its  arrangements  shall  be  fixed  by  the  budget. 

In  determining  the  budget  of  military  expenditure,  the 


THE   IMPERIAL   CONSTITUTION  429 

organization  of  the  imperial  army  legally  fixed  according  to 
the  principles  of  this  Constitution  shall  be  taken  as  a  basis. 

Article  63 

The  total  land  force  of  the  Empire  shall  constitute  a 
uniform  army,  which,  in  peace  and  in  war,  is  under  the 
command  of  the  Kaiser. 

The  regiments,  etc.,  throughout  the  entire  German  army 
shall  bear  continuous  numbers.  As  to  the  uniform,  the 
ground-colors  and  the  cut  of  the  Prussian  army  shall  be 
authoritative.  The  determination  of  the  external  marks  of 
distinction  (cockades,  etc.)  is  left  to  the  heads  of  the  re- 
spective contingents. 

The  Kaiser  has  the  right  and  the  duty  to  see  to  it  that  all  di- 
visions of  the  troops  are  in  full  muster  and  fit  for  war,  through- 
out the  whole  German  army,  and  that  uniformity  in  organi- 
zation and  formation,  in  equipment  and  command,  in  the 
training  of  the  men,  and  in  the  qualification  of  the  officers, 
shall  be  brought  about  and  maintained.  To  this  end,  the 
Kaiser  has  the  authority  to  satisfy  himself  at  any  time,  by 
inspection,  of  the  condition  of  the  several  contingents,  and  to 
order  the  abolishing  of  any  defects  thereby  found. 

The  Kaiser  determines  the  numerical  strength,  the  organi- 
zation, and  the  division  of  the  contingents  of  the  imperial 
army,  as  well  as  the  organization  of  the  national  guard,  and 
has  the  right  to  determine  the  garrisons  within  the  federal 
territory,  as  well  as  to  order  the  putting  of  any  part  of  the 
imperial  army  in  a  state  of  readiness  for  war. 

To  the  end  that  the  indispensable  uniformity  in  the  ad- 
ministration, commissariat,  arming,  and  equipment  of  divi- 
sions of  the  German  army  may  be  preserved,  the  orders  issued 
to  the  Prussian  army  in  the  future  with  reference  to  such 


430  THE  GERMAN  EMPIRE 

matters  shall  be  communicated  to  the  commanders  of  the 
other  contingents  by  the  Committee  on  the  Army  and  Forti- 
fications mentioned  in  Art.  8  (i)  for  their  proper  observance. 

Article  64 

All  German  troops  are  bound  to  render  unconditional 
obedience  to  the  commands  of  the  Kaiser.  This  obligation 
is  to  be  included  in  the  military  oath. 

The  chief  commanding  officers  of  a  contingent,  as  well  as 
all  officers  who  command  troops  of  more  than  one  contingent, 
and  all  commandants  of  fortresses,  shall  be  appointed  by  the 
Kaiser.  The  officers  appointed  by  him  shall  take  the  mili- 
tary oath  to  him.  The  appointment  of  generals  and  of 
officers  performing  the  duties  of  generals,  within  a  contin- 
gent, is  made  dependent  in  each  case  upon  the  consent  of 
the  Kaiser. 

The  Kaiser  is  authorized,  with  respect  to  the  transfer  of 
officers,  with  or  without  promotion,  to  positions  to  be  filled 
by  him  in  the  imperial  service,  be  it  in  the  Prussian  army  or 
in  other  contingents,  to  make  his  choice  from  the  officers 
of  all  contingents  of  the  imperial  army. 

Article  65 

The  right  of  erecting  fortifications  within  the  federal  terri- 
tory shall  belong  to  the  Kaiser,  who  shall  request  the  grant 
of  the  requisite  means  thereto,  so  far  as  the  ordinary  budget 
does  not  guarantee  it,  according  to  §  XII. 

Article  66 

Where  it  is  not  otherwise  provided  for  by  special  conven- 
tion, the  princes  of  the  Bund  and  the  Senates  shall  appoint 


THE  IMPERIAL  CONSTITUTION  431 

the  officers  of  their  contingents,  subject  to  the  restriction  of 
Art.  64.  They  are  the  heads  of  all  the  divisions  of  troops 
belonging  to  their  territory  and  enjoy  the  honors  connected 
therewith.  They  have  particularly  the  right  of  inspection 
at  any  time,  and  receive,  besides  the  regular  reports  and 
notices  of  changes  about  to  take  place,  timely  information 
of  promotions  and  appointments  touching  their  respective 
divisions  of  troops,  in  order  that  the  necessary  publication  of 
them  may  be  made  by  the  State. 

They  also  have  the  right  to  employ  for  purposes  of  police, 
not  only  their  own  troops,  but  also  to  requisition  all  other 
divisions  of  troops  of  the  imperial  army  which  may  be  sta- 
tioned in  their  territories. 

Article  67 

Unexpended  portions  of  the  military  budget  shall  fall, 
in  no  circumstances,  to  an  individual  government,  but  at  all 
times  to  the  imperial  treasury. 

Article  68 

Should  the  public  safety  of  the  federal  territory  be  threat- 
ened, the  Kaiser  may  declare  any  part  of  the  same  under  mar- 
tial law.  Up  to  the  publication  of  an  imperial  law  regulating 
the  occasions,  the  form  of  announcement,  and  the  effects  of 
such  a  declaration,  the  provisions  of  the  Prussian  law  of  4 
June,  1851  (Gesetz-Samml.  for  1851,  p.  451),  shall  be  valid 
in  such  case. 

Final  Provision  of  Sec.  XI 

The  provisions  contained  in  this  section  are  to  be  applied 
to  Bavaria  in  conformity  with  the  more  detailed  stipulations 
of  the  Treaty  of  alliance,  of  23  November,  1870  (Bundes- 


432  THE  GERMAN  EMPIRE 

gesetzbl.  1871,  p.  9)  under  III.  §  5,  and  to  Wiirttemberg 
in  conformity  with  the  more  detailed  stipulations  of  the 
Military  Convention  of  21-25  November,  1870  (Bundes- 
gesetzbl.  1870,  p.  658). 


XII.  IMPERIAL  FINANCE 
Article  69 

All  receipts  and  expenditures  of  the  Empire  shall  be  esti- 
mated for  each  year,  and  included  in  the  imperial  budget. 
The  latter  shall  be  fixed  by  law  before  the  beginning  of  each 
fiscal  year  according  to  the  following  principles :  — 

Article  70 

For  the  defraying  of  all  common  expenses  there  shall  be 
used  first  of  all  the  joint  receipts  from  the  customs  and  com- 
mon taxes,  from  the  railway,  post  and  telegraph  systems,  as 
well  as  from  the  remaining  branches  of  administration.  In 
so  far  as  the  expenditures  are  not  covered  by  these  receipts, 
they  are  to  be  met  by  contributions  from  the  several  States  of 
the  Bund  according  to  the  measure  of  their  population,  which 
contributions  are  to  be  charged  to  them  by  the  Imperial 
Chancellor,  to  the  extent  of  the  amount  fixed  in  the  budget. 
In  so  far  as  these  contributions  are  not  covered  by  the  amounts 
handed  over  to  the  several  States,  they  shall  be  returned  to 
the  States  of  the  Bund  at  the  end  of  the  year  in  the  same 
measure  as  the  remaining  regular  receipts  of  the  Empire 
exceed  its  needs. 

Any  surpluses  from  the  preceding  years  shall  be  used,  so  far 
as  the  imperial  budget  law  does  not  provide  otherwise,  for 
defraying  the  joint  extraordinary  expenses.1 

Amendment  of  14  May,  1904  (RGBl.  p.  169). 


THE  IMPERIAL  CONSTITUTION  433 

Article  71 

The  general  expenditures  shall,  as  a  rule,  be  granted  for 
one  year,  but  may,  in  special  cases,  however,  be  granted  for 
a  longer  period. 

During  the  transition  period  laid  down  in  Art.  60,  the  esti- 
mate of  the  expenditures  for  the  army,  arranged  according 
to  titles,  shall  be  laid  before  the  Bundesrat  and  the  Reichstag 
for  their  information  and  as  a  memorandum. 

Article  72 

An  annual  report  of  the  expenditure  of  all  receipts  of  the 
Empire,  shall  be  laid  by  the  Imperial  Chancellor  before  the 
Bundesrat  and  the  Reichstag  for  their  discharge. 

Article  73 

In  cases  of  extraordinary  need,  a  loan  may  be  contracted, 
or  a  guarantee  assumed  as  a  burden  on  the  Empire,  by  way 
of  imperial  legislation. 

Final  Provision  of  Sec.  XII 

As  to  the  expenditures  for  the  Bavarian  army,  Arts.  69  and 
71  find  application  only  according  to  the  provisions  of  the 
Treaty  of  23  November,  1870,  mentioned  in  the  Final  Pro- 
vision of  §  XI,  and  Art.  72  finds  application  only  to  the 
extent  that  the  transfer  of  the  sum  required  for  the  Bavarian 
army  is  to  be  reported  to  the  Bundesrat  and  Reichstag. 

XIII.  SETTLEMENT  OF  DISPUTES  AND  PENAL  PROVISIONS 

Article  74 

Every  attempt  against  the  existence,  the  integrity,  the 
security  or  the  Constitution  of  the  German  Empire ;  finally, 

2F 


434  THE  GERMAN  EMPIRE 

any  affront  offered  to  the  Bundesrat,  the  Reichstag,  a  member 
of  the  Bundesrat  or  Reichstag,  an  authority  or  a  public  official 
of  the  Empire,  while  in  the  exercise  of  their  calling,  or  in 
relation  to  their  calling,  by  word,  writing,  print,  drawing, 
pictorial  or  other  representation,  shall  be  adjudged  and 
punished  in  the  several  States  of  the  Bund  according  to  the 
laws  therein  existing,  or  which  shall  hereafter  go  into  effect, 
by  which  a  similar  act  committed  against  the  individual  State 
of  the  Bund,  its  constitution,  its  chambers  or  estates,  the 
members  of  its  chambers  or  estates,  its  authorities,  or  its 
officials  is  adjudged. 

Article  75 

For  those  attempts  against  the  German  Empire,  mentioned 
in  Art.  74,  which,  if  directed  against  the  individual  State, 
would  be  considered  high  treason  or  treason  against  the 
State,  the  common  Superior  Court  of  Appeals  of  the  three 
free  and  Hanse  cities  in  Lubeck  is  the  competent  deciding 
tribunal  in  first  and  last  instance. 

Detailed  provisions  with  reference  to  the  competence  and 
the  procedure  of  the  Superior  Court  of  Appeals  shall  follow 
in  the  way  of  imperial  legislation.  Until  the  passage  of  an 
imperial  law,  the  competence  of  the  courts  in  the  individual 
States  up  to  this  time,  and  the  provisions  relating  to  the 
procedure  of  these  courts,  shall  remain  as  at  present. 

Article  76 

Disputes  between  different  States  of  the  Bund,  so  far  as 
they  do  not  partake  of  the  nature  of  disputes  at  private  law 
and  accordingly  are  to  be  decided  by  the  competent  judicial 
authorities,  shall  be  adjusted,  on  appeal  of  one  of  the  parties, 
by  the  Bundesrat. 


THE   IMPERIAL   CONSTITUTION  435 

In  disputes  involving  constitutional  matters  in  those  States 
of  the  Bund  in  whose  constitution  no  authority  is  provided 
competent  to  settle  such  controversies,  the  Bundesrat  shall, 
on  appeal  of  one  of  the  parties,  effect  an  amicable  settlement, 
or,  if  this  does  not  succeed,  shall  bring  about  an  adjustment 
in  the  way  of  imperial  legislation. 

Article  77 

If,  in  any  State  of  the  Bund,  a  case  of  refusal  of  justice  shall 
arise,  and  sufficient  relief  cannot  be  obtained  by  legal  meas- 
ures, then  it  shall  be  the  duty  of  the  Bundesrat  to  receive 
substantiated  complaints  respecting  the  denial  or  obstruc- 
tion of  justice,  which  shall  be  judged  according  to  the  con- 
stitution and  existing  law  of  the  State  concerned,  and  there- 
upon to  effect  judicial  relief  through  the  government  of  the 
State  which  shall  have  given  occasion  to  the  complaint. 

Article  78 

Amendments  to  the  Constitution  shall  follow  the  regular 
course  of  legislation.  They  shall  be  considered  rejected 
when  they  have  against  them  fourteen  votes  in  the  Bundesrat. 

Those  provisions  of  the  Constitution,  by  which  certain 
rights  are  secured  to  individual  States  of  the  Bund  in  their 
relation  to  the  whole,  may  be  amended  only  with  the  consent 
of  the  States  affected. 


INDEX 


Abolitionsrecht,  Kaiser's  pardoning 
power  does  not  involve,  44-45. 

Accounts,  Committee  of  (Bundesrat), 
55,  127,  294,  319,  417. 

Administration  of  Imperial  Debt,  Board 
for,  128. 

Administration  of  Imperial  Invalid 
Fund,  255-257. 

Administration  of  Imperial  Railways, 
Office  for,  128. 

Administrative  authority  of  Bundesrat, 
60-68. 

Admiral,  the  commanding,  an  officer  of 
the  Empire,  24,  329. 

Admirals'  Staff  of  the  Navy,  329. 

Admiralty,  the,  128. 

Agriculture,  regulation  of,  23. 

Alfred,  Prince,  mentioned  relative  to 
citizenship,  144  n.3. 

Alsace-Lorraine,  Kaiser's  power  in 
relation  to,  46-47;  Commissioners 
from,  sit  in  Bundesrat  without  a  vote, 
51;  Committee  for  (Bundesrat),  55, 
215;  entitled  to  elect  members  to 
Reichstag,  80  n.2;  number  of  dele- 
gates to  Reichstag  from,  86;  citizens 
of,  as  citizens  of  German  Empire,  138 
n. ;  question  of  status  of,  in  German 
Empire,  204-206;  Law  concerning 
Union  of,  with  German  Empire,  206- 
207;  five  periods  in  development  of 
organization  of,  208-224;  military 
dictatorship  in,  208-210;  imperial 
dictatorship  in,  210-215;  responsi- 
bility of  Imperial  Chancellor  in,  212- 
213,  214;  position  of  president 
(Oberpraesident)  in,  213-214;  passage 
of  power  in,  to  Bundesrat  and  Reichs- 
tag (1874),  215-218;  erection  of 
Territorial  Committee  for,  217-218; 
establishment  of  Territorial  Com- 
mittee as  fixed  factor  in  legislation  of, 
and  effects,  218-222, 232-234;  present 


system  of  administration  in  (from  i 
October,  1879),  222-234;  present 
relation  of,  to  German  Empire,  224- 
227;  Ministry  in,  227-228;  Council 
of  State  in,  229-230;  Bundesrat  the 
organ  of  the  legislative  power  in,  230— 
232;  legislation  in,  234-240;  govern- 
ment railroads  in,  257-258;  has  no 
share  in  revenue  from  tax  on  beer 
and  in  transit  dues  on  beer,  261; 
exempted  from  beer  and  wine  taxes, 
274  n.4,  283,  295;  Kaiser  exercises 
rights  of  head  of  military  contingent 
in,  343  n.3;  obligation  to  military 
service  of  citizens  of,  373  n.2;  military 
oath  taken  to  Kaiser  only,  by  armed 
forces  of,  380  n.1. 

Ambassadors,  imperial  control  of,  24, 
41,  409;  exemption  from  payment  of 
duty  on  certain  articles  imported  for, 
292;  rights  of  individual  States  to 
send,  296. 

Amending  of  Constitution,  27,  54,  no, 

394,  435- 

Amendment  of  bills  by  Bundesrat  and 
by  Reichstag,  in. 

Amtsgerichte,  173,  174-178. 

Anhalt,  19  n.,  403;  representation  of, 
in  Reichstag,  85  n.3;  military  conven- 
tion with,  349  n.a,  370,  380,  381, 

390- 

Anhalt-Schwartzburg,  3  n.3. 

Annexation,  Law  of  (concerning  Alsace- 
Lorraine),  210-212. 

Appellate  courts,  173,  187-188. 

Army,  not  of  unitary  character,  24-25, 
321;  under  North  German  Con- 
federation, 29,  321-322;  Kaiser's 
supreme  command  of,  45-46,  322- 
326,  429-430;  persons  in  active 
service  in,  may  not  vote,  82 ;  legisla- 
tion with  respect  to,  1 1  o ;  mobilization 
of,  252f  35I~353f  position  of  Bavaria 


437 


438 


INDEX 


relative  to,  325-326,  351-353,  43I- 
432;  ordinance-issuing  power  in 
respect  to,  334-343;  discussion  of 
Kaiser's  right  of  command  over,  344- 
359 ;  rights  and  duties  of  Kaiser  as  com- 
mander of,  347-359!  430-431;  posi- 
tion of  individual  States  relative  to, 
359-381,  429-430;  relation  of  rulers 
of  individual  States  to,  369-370;  obli- 
gation of  citizens  to  service  in,  371- 
381,  426;  service  in,  is  duty  owed  to 
home  State,  not  to  Empire,  374-380; 
furnishing  of  recruits  for,  387-390; 
places  for  enlistment  in,  389  n.2;  dis- 
tribution of  financial  burdens  of,  390- 
393,  426,  428. 

Army  and  Fortifications,  Committee  for, 
(Bundesrat),  26,  55-56,  68,  340,  368, 
384,  388. 

Army  Corps  Districts,  388. 

Arrest  of  members  of  Reichstag,  95-97, 
414. 

Assembly,  right  of,  356. 

Assessments,  proportional,  of  German 
States  in  imperial  financial  system, 
298-305,  311  n.1. 

Assessor,  definition  of,  194  n. 

Association,  imperial  control  of  right  of, 
22,  3S6,  406- 

Attorneys,  fees  of,  171;  examinations 
for,  193-195. 

Auditing  of  imperial  accounts,  311-316. 

Auditing  Office,  Prussian,  312-314,  319. 

August  Treaty,  the,  6-7,  10,  n;  terms 
and  effect  of,  7-9;  expiration  of,  13. 

Austria,  moves  mobilization  of  federal 
army  against  Prussia,  2-3;  elimina- 
tion of,  from  reorganized  Germany, 
5 ;  communes  of,  included  in  German 
tariff  jurisdiction,  269. 

Authentication  of  public  documents, 
22,  406. 

Authorities,  loss  of  citizenship  by  deci- 
sion of,  159-164. 

BADEN,  3  n.3,  16,  19  n.,  403;  Son- 
derreckte  of,  26,  261;  votes  of,  in 
Bundesrat,  50;  representation  of,  in 
Reichstag,  86  n.1,  412;  treaty  with 
United  States  relative  to  citizenship, 
165  n.*;  courts  in,  173  n.1;  has  no 


share  in  revenue  from  tax  on  beer  and 
in  transit  dues  on  beer,  261 ;  taxation 
of  beer  and  brandy  in,  278-280; 
exemption  of,  from  beer  tax  and 
transit  dues  on  beer,  295;  military 
convention  with,  349  n.2,  350  n.*, 
370,  371  n.2,  380,  381,  390,  398  n.2. 

Bank,  Imperial,  67,  128,  319. 

Banking  regulations,  21,  405. 

Bank-notes,  tax  on,  260. 

Bankruptcy,  proceedings  in,  177,  186, 
187  n.7. 

Bankruptcy  Law,  171,  172. 

Bankrupts,  loss  of  franchise  by,  81; 
ineligible  to  Reichstag,  88. 

Bar  examinations,  193-195. 

Bavaria,  3  n.3,  19  n.,  403;  takes  initia- 
tive in  union  of  all  German  States,  15- 
16;  rights  obtained  by,  on  entrance 
into  North  German  Bund,  16-17; 
imperial  power  in,  does  not  extend  to 
domicile  and  settlement,  21,  26; 
Sonderrechte  of,  26,  46  n.4,  295,  402; 
right  of,  to  preside  in  Bundesrat  when 
no  Prussian  substitute  for  Chancellor 
is  available,  26, 53-54, 129, 132 ;  chair- 
manship of  Committee  of  Foreign  Af- 
fai.rs't(Bundesrat)  held  by,  26,  56,  409; 
representation  of,  in  Reichstag,  86  n.1, 
412;  treaty  with  United  States  rela- 
tive to  citizenship,  165  n.4;  Supreme 
Court  in,  173  n.1;  postal  and  tele- 
graph administration  in,  249  n.1,  295, 
296;  has  no  share  in  certain  imperial 
revenues,  260-261,  295;  taxation  of 
beer  and  brandy  in,  261,  278-280, 
295;  tariff  treaties  between  Austrian 
communes  and,  269  n.2;  small  amount 
contributed  by,  to  expenses  of  central 
administration,  295-296;  diplomatic 
service  of,  296;  special  senate  of,  in  or- 
ganization of  Imperial  Military  Court, 
296-297 ;  military  rights  of,  325,  332- 
333.  343,  389-39°>  extent  of  Kaiser's 
military  power  in,  351-353,  385; 
exempted  from  constitutional  provi- 
sions as  to  state  of  war,  358-359; 
military  convention  with,  364,  368, 
393-394;  erection  of  fortifications 
in,  383  n.1,  385-386;  financial  obliga- 
tion of,  relative  to  army,  391-392. 


INDEX 


439 


Beer,  tax  on,  260,  261,  273-274,  278- 
280,  300,  415. 

Beet-sugar,  tax  on,  277,  415,  417. 

Behorde,  significance  of  word,  125  n.1. 

Berlin,  representation  of,  in  Reichstag, 
86. 

Bills,  Kaiser's  right  of  transmission  of, 
from  Bundesrat  to  Reichstag,  34,  42, 
104-109,  127,  411;  right  of  initiative 
of  Reichstag,  99,  101-103;  right  of 
initiative  of  Bundesrat,  101,  102-103; 
amendment  of,  by  Bundesrat  and  by 
Reichstag,  1 1 1 ;  final  action  taken  on, 
by  Bundesrat,  116-117;  financial, 
305-306. 

Bills  of  exchange,  stamp  tax  on,  289. 

Bills  of  Exchange,  Law  of,  181. 

Bills  of  lading,  stamp  tax  on,  289. 

Birth,  citizenship  in  German  Empire  by, 
139-141- 

Bismarck,  circular  note  of  (June  10, 
1866),  5-6;  draft  of  constitution  for 
Bund  laid  before  representatives  of 
States  by,  10;  appointed  Chancellor 
of  North  German  Bund,  13;  purpose 
of,  in  revival  of  title  of  "Kaiser,"  31; 
quoted  on  sovereignty  of  Bundesrat, 
not  of  Kaiser,  58  n.1. 

Bonds,  stamp  tax  on,  289. 

Brandy,  tax  on,  260,  261,  273  n.s,  274, 
278-280,  300,  301,  415. 

Brandy-tax  group  of  States,  no,  278- 
280. 

Bremen,  12,  19  n.,  403;  has  one  vote  in 
Bundesrat,  50;  representation  of,  in 
Reichstag,  85  n.3;  status  as  a  free 
haven,  271,  415;  military  convention 
with,  351  n.2,  371  n.2,  380,  381,  390, 
393.  397,  398  n.2. 

Brunswick,  9,  11-12,  19  n.,  403;  votes 
of,  in  Bundesrat,  50;  question  of 
succession  in,  76;  representation  of, 
in  Reichstag,  85  n.3;  military  con- 
vention with,  349  n.*,  370,  371  n.3, 
380,  381,  390,  393,  396. 

Budget,  of  individual  States,  23;  the 
imperial,  76,  305-307,  432-433;  the 
military,  390-393,  431. 

Building  regulations,  23. 

Bund,  North  German.  See  North 
German  Confederation. 


Bundespraesidium,  28-29,  3OI>  409-410. 

Bundesrat,  a  body  representing  the 
allied  governments,  21,  28;  sovereign 
power  of,  21,  32-33,  58,  115-116;  Im- 
perial Chancellor  chairman  of,  26, 
52-53,  123,  410;  Bavaria's  special 
rights  in,  26  (see  Bavaria);  legisla- 
tion on  the  Imperial  Constitution  in, 
27,  54,  101,  394,  435;  Kaiser's  right 
of  transmission  of  bills  from,  to 
Reichstag,  34,  42,  104-109,  127,  411; 
the  Kaiser  and,  40,  41,  42,  54,  62-66; 
and  declarations  of  war,  40-41,  66, 
397-398,  409-410;  and  making  of 
treaties,  41,  397-398;  position  of,  in 
imperial  system,  48-49;  Kaiser's 
right  to  open,  prorogue,  and  close, 
41,  52,  410;  composition  of,  48-50, 
407;  members  of,  vote  as  State 
represented  has  instructed,  not  indi- 
vidually, 50-51;  has  no  power  to 
verify  instructions  of  representatives 
to,  51;  Commissioners  from  Alsace- 
Lorraine  in,  51;  method  of  transac- 
tion of  business  by,  52-56;  intro- 
duction of  measures  into,  54;  ma- 
jority principle  prevails  in,  54,  no, 
129;  Committees  of,  55-56,  408-409; 
members  of,  cannot  be  members  of 
Reichstag,  57,  83-84,  409;  status  of 
members  of,  57,  433-434;  triple 
functions  of  (legislative,  administra- 
tive, and  judicial),  58;  legislative 
function  of,  58-60;  administrative 
function  of,  60-68;  supervision  of 
execution  of  laws  by,  60-6 1;  or- 
dinance power  of,  62-65;  choice  of 
imperial  officials  by,  65-66;  judicial 
function  of,  68-78;  consent  of,  nec- 
essary to  closing  of  Reichstag,  90; 
sanction  imparted  to  bills  by,  116- 
117;  Committee  for  Alsace- 
Lorraine,  215;  an  organ  of  the 
legislative  power  in  Alsace-Lor- 
raine, 230-232;  exclusion  from 
tariff  jurisdiction  rests  with,  270, 
271-272;  connection  of,  with  grant- 
ing of  expenditures,  308,  310,392;  con- 
sent of,  necessary  in  military  con- 
ventions if  imperial  matters  are 
affected,  397-398. 


440 


INDEX 


Bureaus  of  Imperial  Chancellor,  127- 
128. 

CHANCELLOR.  See  Imperial  Chancel- 
lor. 

Children,  illegitimate,  and  citizenship, 
141-142,  154  n.*,  155. 

Church  and  state,  regulation  of  relation 
of,  23. 

Citizenship,  imperial  supervision  of,  21, 
405;  of  unitary  State  and  of  federal 
State,  134-139;  acquirement  of,  in 
German  Empire,  139-154;  loss  of, 
155-167;  reinstatement  to,  166-167; 
protection  of  rights  through,  167-170; 
involves  liability  to  military  service, 
371-374. 

Citizenship,  Federal  Office  for,  295. 

Coat  of  arms,  Kaiser's  right  to  imperial, 

39- 

Code  of  Civil  Procedure,  171,  172. 

Code  of  Criminal  Procedure,  171; 
Military,  356,  428. 

Coinage,  21,  67,  405. 

Colonies,  laws  issued  for,  122. 

Colonization,  regulation  of,  21. 

Command,  regulation  of  military  affairs 
by,  334-343;  element  of,  in  bills,  see 
Sanction. 

Commerce,  imperial  control  of  legisla- 
tion pertaining  to,  21,  405;  treaties 
affecting,  63. 

Commerce,  Committee  on  (Bundesrat), 
55,  408,  426. 

Commercial  Code,  172. 

Commercial  courts,  181-183. 

Committees,  of  Bundesrat,  55-56,  215, 
409;  of  Reichstag,  92. 

Common  carriers,  lawsuits  of,  177. 

Compensation,  claims  for,  67. 

Competence,  Empire's  competence  to 
enlarge  its,  27. 

Conferment  of  citizenship,  144-154. 

Confiscation  for  evasion  of  duty  pay- 
ments, 287. 

Constitution,  each  State  has  control  of 
its  own,  23. 

Constitution  of  North  German  Con- 
federation, history  of,  6-12;  judicial 
controversies  over,  12-13;  provisions 
of,  looking  to  union  of  all  Germany, 


15;   powers  bestowed  later  on  Kaiser 
found  in,  28-29. 

Constitution,  Imperial,  publication  and 
character  of,  18;  provisions  included 
in,  21-22;  amendments  of,  27,  54, 
no,  394,  435;  the  military  conven- 
tions and  the,  393-398 ;  text  of,  403- 

435- 

Consular  courts,  45,  69;  appeals  from, 
190-191. 

Consular  jurisdiction,  172. 

Consular  representation,  22. 

Consuls,  imperial  control  of,  24,  426; 
appointment  of,  41 ;  pardon  in  cases 
of  judgments  passed  by,  45 ;  registra- 
tion of  citizens  by,  164-165. 

Consumption  taxes,  no,  261,  273-277, 
415-416;  rights  of  States  relative  to 
levying,  273-277;  collection  and  ad- 
ministration of,  292-293. 

Content  of  a  law,  determination  of,  100- 
1 1 1 ;  distinction  between  ' '  sanction  " 
and,  too  n.2. 

Contingent,  scope  of  word,  360-361. 

Contraband  goods,  286-287. 

Conventions,  military,  393-402. 

Costs  of  courts,  171. 

Council  of  State  in  Alsace-Lorraine, 
229—230. 

Court,  Bundesrat  as  a,  68. 

Court  of  Guardianship,  156. 

Courts,  jurisdiction  of  States  over,  24; 
costs  of,  171;  four  grades  of,  173; 
Amtsgerichte,  174-178;  Landgerichte, 
179-187;  Oberlandesgerichte,  187- 
188;  Reichsgericht,  188-191;  military, 

357,  365- 

Courts-martial,  357-358. 
Credentials,  of  members  of  Bundesrat, 

51,  76;  of  members  of  Reichstag,  91, 

413- 
Criminal    Code,    171,    172;     penalties 

under,  during  state  of  siege,  356  n.3. 
Criminal  courts,  180. 
Criminal  law,  Kaiser's  protection  before, 

39- 
Criminal  Procedure,  Military  Code  of, 

3S6,  428. 
Criminal  proceedings  against  members 

of  Reichstag,  95-97,  414.     ' 
Crown  Prince,  imperial  title  of,  39. 


INDEX 


441 


Customs  and  Tax  Deputies,  imperial, 
281-282,  290  n.1. 

Customs  and  Taxes,  Committee  on 
(Bundesrat),  55,  127. 

Customs  duties,  21,  24,  no,  261-290; 
places  exempted  from,  270-273; 
articles  imported  for  rulers  and 
ambassadors  exempted  from  pay- 
ment of,  292. 

Customs  inspectors,  63-64. 

Customs  laws,  62-64,  66. 

Customs  Treaties,  280  n.s. 

Customs  Union,  important  part  played 
by,  in  realization  of  German  unity, 
261-262. 

Customs  Union  Treaty  (8  July,  1867), 
14-15,  50,  62,  64,  262-268,  418. 

DEBT,  the  imperial,  297,  316-319. 
Declarations  of  war,  40-41,  66,  409-410. 
Defects  in  execution  of  laws,  powers  of 

Bundesrat  concerning,  63-64,  68,  407. 
Department  of  Interior,  128. 
Department  of  Justice,  128. 
DeiUscher    Reichs-     und    Preussischer 

Staats-Anzeiger  newspaper,  258-259. 
Directory   of   Imperial   Printing-office, 

259- 
Dislocation,  Kaiser's  right  of,  relative 

to  army  contingents,  350-351,  384. 
Dismissal  from  citizenship,  155-159. 
Disputes  between  States,  70-71,  434- 

435- 

Distribution  of  Recruits,  Law  govern- 
ing, 388. 

Documents,  authentication  of  public, 
22,  406;  stamp  tax  on,  288-290,  292. 

Domicile,  imperial  control  in  matters  of, 
2 1 ;  suffrage  dependent  on  possession 
of,  82;  and  citizenship,  140. 

Drafts,  stamp  tax  on,  289. 

Duties,  customs,  21,  24,  no,  261-292. 

ELBE,  status  of  lower,  respecting  tariff 

boundaries,  272-273. 
Election  Circles  (Reichstag),  86. 
Elections  to  Reichstag,  81-87,90-91,412. 
Elections,  Committee  of  (Reichstag),  92. 
Embezzlement,  trial  for,  178. 
Emigration,    regulation    of,    21;     and 

citizenship,  156-159. 


Emperor,  German.     See  Kaiser. 
Employees,  lawsuits  of,  177. 
Engrossment  of  laws,   117-120,  411. 
Enlistment,  places  of,  389  n.2. 
Equalization  tax,  274-275. 
Equipment,  military,  administration  of, 

248-249. 

Equipment  of  Troops,  Fund  for,  258. 
Examinations  for  judiciary,  193-195. 
Execution  against  recalcitrant  State, 

27,  43,  66,  69,  411. 
Execution  of  judgments,  22,  406. 
Execution  of  laws  supervised  by  Kaiser, 

42-43,  4"- 

Expenditures,  granting  of,  307-311. 
Expenses  of  army,  distribution  of,  390- 

393,  426,  428. 
Expropriation  of  land  for  fortifications, 

383,  430. 
Exterritoriality,  non  Prussian  members 

of  Bundesrat  have  privilege  of   57. 

FEES,  laws  regulating  court,  witnesses', 
attorneys',  etc.,  171. 

Final  Resolution  relative  to  Bavarian 
military  rights,  351-353- 

Finances,  imperial,  66-67,  99,  241-319, 
432-433 ;  military,  390-393,  426,  428. 

Fire  regulations,  23. 

Fiscus,  the  Imperial,  241-245. 

Fishing,  regulation  of,  23. 

Flag  of  navy  and  merchant  marine,  425. 

Foreign  affairs,  imperial  control  over, 
24,  405. 

Foreign  Affairs,  Committee  on  (Bund- 
esrat), 55,  56,  409. 

Foreign  countries,  loss  of  citizenship  by 
residence  in,  164-167. 

Foreigners,  surveillance  of,  21;  citizen- 
ship of  children  of,  140;  naturaliza- 
tion of,  151-153;  loss  of  citizenship 
by  marriage  to,  155;  military  service 
by,  not  compulsory,  373. 

Foreign  Office,  128. 

Forestry  regulations,  23. 

Fortifications,  imperial  control  of,  24, 
381-387,  430;  under  North  German 
Bund,  29;  money  from  sale  of,  67; 
abandoned,  251,  386;  territorial  rights 
of  States  and  erection  of,  381-383; 
Kaiser's  military  administration  of, 


442 


INDEX 


384-385;  appointment  of  comman- 
dants of,  385. 

Fortresses,  construction  of,  46. 

Frankenstein  Clause,  the,  300-305. 

Frankfurt,  3  n.*,  50. 

Free  ports,  270-272,  415. 

Freight  charges,  lawsuits  over,  177. 

French  War  Indemnity,  251,  253, 
258  n.». 

GARRISONS,  determination  of,  by  Kaiser, 

35°- 

Gerichtsverfassungsgesett,  171;  provi- 
sions of,  191-201. 

German  Emperor.     See  Kaiser. 

German  Empire,  origins  of,  in  North 
German  Bund,  1-2;  the  August 
Treaty  a  definite  step  toward  erection 
of,  7;  relationship  between  North 
German  Bund  and  South  German 
States  leading  to  formation  of,  14-15; 
birth  of,  17-18;  Constitution  of,  18, 
4o3-435 !  character  of,  as  a  State,  19- 
20;  States  composing,  19-20,  403; 
sovereignty  in,  rests  with  Bundesrat, 
21,  32,  58,  115-116;  field  of  legisla- 
tive power  of,  2 1-22 ;  executive  power 
of»  23-25;  extent  and  limit  of  powers 
of,  25-27;  not  a  monarchy,  though 
composed  of  monarchies,  32-33,  57- 
58;  has  no  voice  in  choice  of  Kaiser, 
35-36;  question  of  regency  in,  37-38 ; 
legislative  power  of  .exercised  by  Bund- 
esrat and  Reichstag,  58-59;  acquire- 
ment of  citizenship  in,  1 39-1 54 ;  loss  of 
citizenship  in,  155-167;  control  of  judi- 
cial organization  by,  171  ff. ;  status  of 
Alsace-Lorraine  in,  204  ff . ;  finances 
of,  241-319,  432-433;  working  capi- 
tal of,  245-259;  administrative  means 
of,  246-251;  financial  means  of,  251- 
259;  continuity  between  Zollverein 
and,  261-269;  practically  a  single 
tariff  district,  269,  273;  relations  of, 
with  States,  respecting  administration 
of  finances,  290-294;  expenses  of, 
294-298;  Auditing  Court  of,  313-316; 
Prussian  legislative  competence  in  mil- 
itary matters  for,  331-334,  427-428. 

German  States,  position  of,  as  to  power 
in  Empire,  20-21;  exclusive  legisla- 


tive powers  of,  23 ;  field  of  executive 
control  of,  23-25;  lack  power  to 
withdraw  from  union,  25;  limitations 
of  power  of,  25;  ordinance  power  of 
Bundesrat  in,  65;  decision  of  con- 
troversies between,  70-71,  434-435; 
relation  of  Imperial  Chancellor  to, 
129;  reception  into  citizenship  in, 
146-154;  administration  of  justice 
by,  172;  eligibility  to  judicial  office 
in,  197;  the  "proportional  assess- 
ments" of,  298-305,  311  n.a;  imperial 
army  composed  of  contingents  of,  321 ; 
military  supremacy  of,  359-381 ;  obli- 
gation to  military  service  is  a  duty 
owed  to  one  of,  rather  than  Empire, 
374-381 ;  erection  of  fortifications  and 
territorial  rights  of,  381-383  (see 
Fortifications);  distribution  of  mili- 
tary expenses  among,  390-393,  432; 
the  military  conventions  with,  393- 
402.  See  North  German  Confedera- 
tion. 

Government  railroads,  243  n.1,  257- 
258,  418-420. 

Grant  of  citizenship,  144-154. 

Guardianship,  persons  under,  excluded 
from  franchise,  81;  Court  of,  156. 

HAMBURG,  19  n.,  403;  vote  of,  in 
Bundesrat,  50;  representation  of,  in 
Reichstag,  85  n.3;  tariff  jurisdiction 
relative  to,  270  n.,  271-273;  military 
agreement  with,  351  n.2,  371  n.2,  380, 
381,  390,  393,  397,  398  n.2. 

Handelsrichter,  181-183. 

Hannover,  3  n.3,  6,  50,  407. 

Hanse  Cities.  See  Bremen,  Hamburg, 
and  Ltibcck. 

Heinze  Law,  the,  93  n.*. 

Heligoland,  excluded  from  German 
tariff  jurisdiction,  270  n.;  provisions 
as  to  liability  to  military  service  of 
natives  of,  373  n.2. 

Hesse,  3  n.s,  6,  16,  19  n.,  50,  403;  votes 
of,  in  Bundesrat,  50;  representation 
of,  in  Reichstag,  85  n.3,  86  n.1,  412; 
treaty  with  United  States  relative  to 
citizenship,  165  n.4;  military  agree- 
ment with,  349  n.*,  350  n.3, 3 70, 3 7 1  n.2, 
380,  381,  390. 


INDEX 


443 


Holstein,  50. 

Hotel  bills,  lawsuits  over,  177. 

Hunting,  State  supervision  of,  23. 

ILLEGITIMACY  and  citizenship,  141-142, 
154  n.4,  155. 

Immunity  of  members  of  Reichstag  from 
criminal  prosecution,  95-97,  414. 

"Imperial,"  title  of,  bestowed  by  Kaiser 
on  officials  and  authorities,  39. 

Imperial  Auditing  Court,  392. 

Imperial  Bank,  Board  of  Governors  of, 
67. 

Imperial  Chancellor,  an  appointee  of 
the  Kaiser,  43-44,  123-124,  4*°; 
presides  over  Bundesrat,  52-53,  123, 
410;  substitute  for,  as  chairman  of 
Bundesrat,  53-54,  129,  132;  acts  for 
Kaiser  in  transmission  of  bills,  104; 
responsibility  of,  in  transmission  of 
bills,  108-109;  responsibility  of,  in 
engrossment  of  laws,  120;  respon- 
sibility of,  in  publication  of  laws,  121- 
122;  functions  of,  as  imperial  official 
and  as  Prussian  delegate  to  Bundesrat, 
125-126;  may  not  be  a  member  of 
Reichstag,  127;  controls  all  other 
administrative  officials,  127-128; 
responsibility  incurred  by,  in  counter- 
signing measures,  130-131,  411;  sub- 
stitute for,  as  imperial  minister,  132- 
133;  responsibility  of,  in  Alsace- 
Lorraine,  212-213,  214;  dissociation 
of,  from  government  of  Alsace-Lor- 
raine, 223;  Imperial  Fiscus  repre- 
sented by,  243-244;  responsibility  of, 
with  respect  to  Imperial  Invalid  Fund, 
256  n.2;  levying  of  "proportional 
assessments"  by,  305;  responsibility 
of,  for  acts  of  Imperial  Naval  Office, 
329;  not  responsible  for  orders  of 
Kaiser  as  commander  of  army,  346- 
347 ;  responsibility  of,  for  ordinances 
of  Kaiser,  354  n.2;  supervises  military 
affairs  of  the  several  States,  368. 

Imperial  Debt  Administration,  318-319. 

Imperial   Debt   Commission,   67,   352, 

3*9- 

Imperial  Diet.    See  Reichstag. 
Imperial  Gazette,  publication  of  laws 

in,    iai-iaa,   404;    appointment   of 


members  of  Bundesrat  published  in, 
127;  declarations  of  martial  law 
published  in,  354. 

Imperial  Insurance  Office,  69. 

Imperial  Military  Court,  365. 

Imperial  Naval  Office,  68-69,  3*9- 

Imperial  Post-office  Department,  128. 

Imperial  Printing-office,  258,  259. 

Imperial  Tax  deputies,  281-282,  290  n.1. 

Imperial  Treasury  Fund,  258-259. 

Income,  imperial,  67,  259-290. 

Independence  of  judiciary,  128, 197-202. 

Indigenat,  the  common,  167-170,  404. 

Industrial  activity,  control  of,  21,  24. 

Initiative,  Kaiser's  right  of,  of  legisla- 
tion, 42,  54;  right  of,  of  Reichstag, 
99,  101-103,  4I2~4I3;  right  of,  of 
Bundesrat,  101,  102-103. 

Insolvent  persons,  loss  of  franchise  by,  81. 

Inspection,  Kaiser's  right  of,  of  armed 
forces,  348-349,  384-385. 

Inspectors,  customs,  281-282. 

Installation,  acquirement  of  citizenship 
through,  153-154- 

Instruction,  regulation  of  public,  23. 

Insurance  matters,  imperial  supervi- 
sion of,  21,  405. 

Insurance  Office,  243  n.1. 

Intellectual  property,  protection  of,  22, 
405. 

Interior,  Department  of,  128. 

Interpellation,  right  of,  99. 

Invalid  fund,  128,  253-257,  319. 

Inventions,  imperial  control  of,  22,  191, 
405- 

JADE,  harbor  of,  68-69,  387,  424. 

Judges,  appointment  of,  44,  191,  411; 
life  tenure  of,  44,  199;  independence 
of,  128,  197-201;  of  Amtsgerichte, 
174;  of  Landgerichte,  179-180;  of 
commercial  courts,  182-183;  °f  J^J 
courts,  184;  of  Oberlandesgerichte, 
187;  of  Reichsgericht,  188-189,  202~ 
203;  qualifications  of,  192-197;  fixed 
compensation  of,  199-200;  removal 
and  transfers  of,  200-202 ;  of  military 
courts,  365. 

Judgments,  execution  of,  22,  406- 

Judicial  Affairs,  Committee  on  (Bund- 
esrat), 55. 


444 


INDEX 


Judicial  Organization,  Law  of,  171, 173, 

/9I-2OI. 

Judiciary,  right  of,  to  pass  on  con- 
stitutionality of  laws,  lacking,  120; 
independence  of,  128,  197-201. 

Jungholz,  German  tariff  jurisdiction 
includes,  269. 

Jura  singulorum,  States  enjoying,  295- 
297.  See  Sonderrechte. 

Jurors,  184-186. 

Jury  courts,  183-186. 

Jury  service,  members  of  Reichstag  may 
refuse,  97. 

Justice,  Department  of,  128;  Commis- 
sion for  (Reichstag),  192;  administra- 
tion of  military,  365-366. 

KAISER,  powers  of,  found  in  Constitu- 
tion of  North  German  Confederation, 
28—29;  ^e  name,  supersedes  former 
titles  held  by  king  of  Prussia,  29; 
Bismarck's  purpose  in  reviving  title  of, 
31;  sovereignty  does  not  rest  with, 
but  with  Bundesrat,  32-33,  58,  115- 
116;  extent  and  limitation  of  powers 
of,  33-34,  38-47,  57-58;  Reichstag 
summoned,  opened,  and  closed  by, 
33-34,  89-90,  410;  transmission  of 
bills  by,  34,  42,  104-109,  127,  411; 
position  of,  unique  among  political 
institutions,  34;  succession  to  posi- 
tion of,  34-36;  personal  rights  of,  38- 
40 ;  source  of  income  of,  39-40 ;  sole 
and  exclusive  representative  of  the 
Empire,  40;  governmental  rights  of, 
40-47;  and  ambassadors,  consuls, 
and  the  representatives  of  foreign 
powers,  41;  and  making  of  treaties, 
41 ;  initiation  of  legislation  by,  42, 
54;  engrossing  and  publishing  of 
laws  by,  42,  59,  114,  120-122,  411; 
supervision  of  execution  of  laws  by, 
42-43;  appointment  of  Imperial 
Chancellor  by,  43-44,  123-124,  410; 
appointment  of  judges  by,  on  motion 
of  Bundesrat,  44 ;  right  of  pardon  of, 
44-45;  supreme  commander  of 
armed  forces,  45-46,  322-326,  329- 
33°,  344-359;  power  of,  in  Alsace- 
Lorraine,  46-47,  2 1 1-2 1 2,  215-217, 
223-224,  239-240;  right  of,  to  open, 


close,  and  prorogue  Bundesrat,  52, 
410;  tariff  and  tax  laws  administered 
by,  63;  appointment  by,  of  officials 
chosen  by  Bundesrat,  65-66;  cannot 
initiate  bills,  103-104;  question  of 
rights  of,  regarding  bills  to  be  trans- 
mitted, 105-109;  appointment  of 
substitute  for  Imperial  Chancellor  by, 
132-133;  ordinance-issuing  power  of, 
respecting  army  and  navy,  336-337, 
340-341,  343;  rights  and  duties  of, 
as  military  commander,  347-359; 
right  of  mobilization  of,  351-353; 
right  of,  to  declare  martial  law,  353- 
359;  rights  of,  during  state  of  siege, 
357-358. 

Kiel,  harbor  of,  387,  424. 

Konstanz,  communes  of,  excluded  from 
tariff  jurisdiction,  270  n. 

Landgerichte,  173,  179-187. 
Landsturm,    Kaiser's    right    regarding, 

35°,  35i. 

Landwehr,  45,  79,  349,  373~374,  427- 

Lauenburg,  85,  403. 

Law,  legislation  pertaining  to  civil  and 
criminal,  22;  criminal,  and  members 
of  Reichstag,  95-97,  414;  martial, 

353-359- 

Law  on  Acquirement  and  Loss  of 
Federal  and  State  Citizenship,  139. 

Law  of  Free  Migration,  150,  167. 

Law  governing  Imperial  Officials,  126, 
367-368. 

Law  on  Legal  Relations  of  Objects 
devoted  to  Service  of  Imperial  Ad- 
ministration, 247-248. 

Law  relating  to  Military  Service,  376. 

Law  concerning  Union  of  Alsace-Lor- 
raine, etc.,  206-207. 

Laws,  engrossment  and  publication  of, 
42,  59,  114,  117-122,  129-130,  411; 
supervision  of  execution  of,  42-43, 
60-61,  64-65;  part  of  Bundesrat  in 
formulating  and  passing,  58-60;  con- 
sent of  Reichstag  necessary  for  pas- 
sage of,  98-99 ;  four  stages  in  perfect- 
ing of,  100;  determination  of  content 
of,  loo-m;  sanction  of,  111-117; 
Imperial  Gazette  the  organ  for  pub- 
lishing, 121-122,  404;  relative  to 


INDEX 


445 


administration  of  justice,  171-173; 
made  in  and  made  for  Alsace-Lor- 
raine, 219-220,  234-240;  military, 

334-343- 

Legal  procedure,  imperial  control  of 
legislation  pertaining  to,  22. 

Legation  Fund,  the,  258. 

Legitimation,  acquirement  of  citizen- 
ship by,  141-142;  loss  of  citizenship 
by,  155- 

Leipzig,  Reichsgericht  at,  173,  188. 

Lichtenstein,  3  n.3. 

Lippe,  19  n.,  403 ;  question  of  succession 
in,  74,  76;  representation  of,  in 
Reichstag,  85  n.3;  military  agreement 
witk,  351  n.2. 

Loans,  imperial,  260,  316-319,  433. 

Lottery  tickets,  stamp  tax  on,  289. 

Liibeck,  19  n.,  403;  vote  of,  in  Bund- 
esrat,  50;  representation  of,  in 
Reichstag,  85  n.3;  incorporation  of, 
in  general  tariff  district,  271  n.a; 
military  convention  with,  351  n.2,  371 
n.2,  380,  381,  390,  393,  397,  398  n.2. 

Ludwig  of  Bavaria,  on  adoption  of  title 
of  "Kaiser,"  31-32. 

Luxemburg,  3  n.3,  6;  imperial  railroad 
in,  258,  260;  included  in  German 
tariff  jurisdiction,  269. 


MARINE  matters,  imperial  control  of, 

33,  424-425. 

Marriage,  acquirement  of  citizenship 
by,  142-144;  loss  of  citizenship  by, 

155- 
Martial  law,  Kaiser's  right  to  declare, 

353-359,  43i- 

Mecklenburgs,  the,  3  n.3,  6,  403;  votes 
of,  in  Bundesrat,  50;  representation 
of,  in  Reichstag,  85  n.3;  military  con- 
vention with,  349  n.2,  393,  396. 

Meiningen,  3  n.3,  403. 

Migration,  control  of,  21,  405;  and 
citizenship,  156-159;  bearing  of,  on 
question  as  to  whom  military  obliga- 
tion is  due,  375-379- 

Military  conventions,  the,  393-402 

Military  courts,  296-297,  365. 

Military  persons  ineligible  to  member- 
ship in  Reichstag,  82. 


Military  Service,  Law  respecting  Obli- 
gation to,  157-158,  334,  376. 

Military  service,  obligation  to,  361,  371- 
381,  426-427;  question  as  to  whom 
duty  is  owed,  Empire  or  State,  374- 

375- 

Mines,  State  regulation  of,  23. 
Ministries  of  individual  States,  367. 
Ministry  for  Alsace-Lorraine,  erected, 

223 ;  character  and  functions  of,  227- 

228. 

Ministry  of  Public  Works,  257-258. 
Ministry  of  War,  Prussian,  25,  342,  388. 
Mittelberg,   German  tariff  jurisdiction 

extended  to,  269. 
Mobilization  of    army,    252,    351-353, 

428;  Bavarian  agreement  concerning, 

351-353- 

Money  bills,  99,  305-306. 
Munich,  Supreme  Court  at,  173  n.1. 
Mutiny,  trial  for,  357. 

NATURALIZATION,  151-153. 

Naval  Affairs,  Committee  for  (Bundes- 
rat), 55-56. 

Naval  Office,  Imperial,  68-69,  329- 

Naval  ports,  382,  387;  Kaiser's  right  of 
military  administration  of,  384-385. 

Navigation,  control  of,  22,  406. 

Navy,  imperial  control  of,  22,  23,  24; 
under  North  German  Bund,  29; 
Kaiser  supreme  commander  of,  46, 
322-326,  329-330;  persons  serving 
in,  cannot  vote,  82;  legislation  with 
respect  to,  no,  328;  Imperial  Mili- 
tary Court  highest  criminal  court  for, 
297;  unitary  character  of,  321-322, 
326-327,  424;  liability  to  service  in, 
328-329,  371-381,  424;  officers  of, 
329-330;  rights  and  duties  of  Kaiser 
as  commander  of,  347-359. 

Newspaper,  government,  258-259,  260. 

Nicolsburg,  Preliminary  Peace  of,  4. 

Nolle  prosequi  powers,  45. 

North  German  Confederation,  origins 
of  German  Empire  in,  1-2 ;  the  treaty 
constituting  base  for  erection  of,  6-8; 
final  adoption  of  Constitution  for,  1 1 ; 
date  of  erection  of,  13;  relationship 
between  South  German  States  and, 
14-15;  entrance  of  South  German 


446 


INDEX 


States  into,  15-17;  treaties  between 
South  German  States  and,  looking  to 
union,  16-17;  extension  of,  into 
German  Empire,  17-18;  Constitu- 
tion of,  28-29;  powers  later  bestowed 
on  Kaiser  existent  in  organization  of, 
28-29;  Standing  Orders  of,  91  n.'; 
part  taken  by  Customs  Union  in 
formation  of,  261-264;  preponder- 
ance of  Prussia  in  area  and  popula- 
tion in,  330. 
November  Treaties,  46  n.*,  53. 

OATH,  military,  379-380,  430. 

Oberlandesgerichte,  173,  187-188. 

Officers,  naval,  24,  329-330;  army,  24- 
25,  46,  363-364,  370,  430-431. 

Officials,  eligibility  of,  to  Reichstag,  84- 
85;  fees  of  court,  171;  customs  and 
tax,  281-282. 

Oldenburg,  3  n.*,  19  n.,  403;  govern- 
ment of,  68-69;  representation  of, 
in  Reichstag,  85  n.3;  military  con- 
vention with,  349  n.2,  350  n.3,  351  n.1, 
370,  371  n.2,  380,  381,  390,  393,  396- 
397,  398  n.». 

Order  of  Business,  Reichsgericht,  189. 

Ordinances,  Kaiser's  power  to  issue, 
43!  power  of  Bundesrat  to  issue,  60- 
62 ;  military,  334-343 ;  of  Kaiser  for 
Alsace-Lorraine,  231,  239-240. 

PARDON,  Kaiser's  right  of,  44-45 ;  right 

of,  in  military  matters,  381. 
Passports,  21,  405. 
Patents,  imperial  control  of,   22,   191, 

405- 
Paupers,   franchise   denied  to,   81-82; 

ineligible  to  Reichstag,  89;   ineligible 

to  citizenship,  150. 
Pension  fund,  128,  253-257. 
Pensions,  254  n.*. 
Playing-cards,  stamp  tax  on,  288-289, 

392. 
Police,  medical  and  veterinary,  22,  406; 

in  service  of  States,  though  acting  for 

Empire,  24. 
Police  regulations  of  individual  States, 

33- 

Population,  representation  in  Reichstag 
dependent  on,  85;  statistics  of,  at 


formation  of  North  German  Con- 
federation, 330  n.2. 

Ports,  imperial  war  (Jade  and  Kiel), 
68-69,  387,  424;  free,  270-272,  415. 

Postal  administration,  22,  23-24,  249, 
258,  421-424. 

Post-office  Department,  Imperial,  128. 

Prag,  Treaty  of,  5,  14. 

President,  distinction  between  Kaiser 
and  American  or  French,  33. 

President  of  Alsace- Lorraine,  213-214; 
office  of,  abolished,  223;  Statthalter 
succeeds  to  position  of,  225-226. 

Press,  regulation  of,  22,  406,  433-434; 
trial  of  crimes  committed  by,  187  n.2. 

Press  Law,  Imperial,  356. 

"Principles  for  a  New  Federal  Con- 
stitution," 6. 

Printing-office,  Imperial,  258,  259. 

Promissory  notes,  stamp  tax  on,  289. 

Property,  protection  of  intellectual,  22, 
405. 

Property  claims,  lawsuits  involving,  177, 
1 86,  189  n.8. 

Proportional  assessments  of  the  several 
States,  in  imperial  financial  system, 
298-305,  311  n.1. 

Protectorates,  laws  issued  for,  122;  ap- 
peals from  decisions  of  officials  of, 
190-191. 

Prussia,  union  of  States  proposed  by,  6 ; 
attitude  of,  toward  provisions  of 
August  Treaty,  9;  certain  special 
rights  of,  26;  permanent  right  to 
Praesidium  in  Bundesrat,  26,  52-53, 
123,  132,  402;  intended  effect  on,  of 
adoption  of  title  of  "Kaiser"  for 
king,  31-32;  votes  of,  in  Bundesrat, 
50;  vote  of,  in  Bundesrat,  decisive  in 
certain  cases,  54-55,  no,  406-407; 
chairmanship  of  Committees  of  Bund- 
esrat held  by,  56;  not  represented  in 
Committee  on  Foreign  Affairs  (Bund- 
esrat), 56;  representation  of,  in 
Reichstag,  85  n.*;  law  examinations 
in,  194  n.;  payment  into  imperial 
treasury  for  work  of  imperial  am- 
bassadors by,  296;  preponderance 
of,  in  population  and  area  considered 
in  development  of  German  Empire, 
330;  army  of,  at  establishment  of 


INDEX 


447 


German  Empire,  330-332;  legislative 
competence  of,  in  military  matters, 
for  whole  Empire,  331-334,  338~339. 
427-428;  and  the  military  conven- 
tions, 393-402. 

Prussia,  king  of:  command  of  armed 
forces  of  union  of  States  assigned  to, 
7,  394-395;  powers  of,  in  North 
German  Bund,  28-29,  409-411;  be- 
comes German  Kaiser,  29;  slight 
effect  of  change  of  title,  30 ;  ipso  facto 
German  Kaiser,  35;  Imperial  Chan- 
cellor represents,  in  Bundesrat,  124- 
125- 

Publication,  of  laws,  42,  59,  114,  117- 
122,  129-130,  411;  of  appointment 
of  members  of  Bundesrat,  127;  of 
military  ordinances,  342-343. 

Publication  Law  relative  to  Constitution 
of  North  German  Bund,  11-13. 

Public  instruction,  23. 

Publicity  of  proceedings  of  Reichstag, 
93-94,  412. 

Public  meetings,  regulation  of,  23. 

QUORUM,  of  Bundesrat,  54,  410;  of 
Reichstag,  94,  413. 

RAFTING,  regulation  of,  22,  406. 

Railroad  Freight  Rates,  Committee  on 
(Bundesrat),  55. 

Railroad  Office,  expenses  of,  295. 

Railroads,  imperial,  243  n.1,  258,  418- 
420;  trial  for  destruction  of,  357. 

Railroads,  Post,  and  Telegraph,  Com- 
mittee on  (Bundesrat),  55,  408. 

Railway  Department,  Imperial,  128. 

Railway  matters,  imperial  control  of,  22, 
418-420. 

Reception  into  citizenship,  146-151,  167. 

Recruits,  furnishing  of,  to  imperial 
army,  387-390. 

Referendar,  definition  of,  194  n. ;  em- 
ployment of,  in  Prussia,  195  n.3. 

Regency,  provisions  for,  in  Prussia,  37- 
38;  powers  of  Bundesrat  relative  to,  74. 

Reichsgericht,  44,  173,  188-191;  posi- 
tion of  members  of,  as  judges,  202- 
203. 

Reichs-  und  Staais-Anzeiger  newspaper, 
258-259,  260. 


Reichstag  of  North  German  Bund,  28- 
29. 

Reichstag,  body  representing  the  Ger- 
man people,  28,  79-80;  Kaiser's 
rights  of  opening  and  closing,  33-34, 
41-42,  89-90,  410;  Kaiser's  right  of 
transmission  of  bills  from  Bundesrat 
to,  34,  42,  104-109,  127,  411;  and 
making  of  treaties,  41 ;  Bundesrat 
and,  52;  members  of,  cannot  be 
members  of  Bundesrat,  57 ;  legislative 
function  of,  58-60,  98-99 ;  consent  of 
Bundesrat  necessary  in  dissolving,  66 ; 
elections  to,  81-87,  9°~9I  >  composi- 
tion of,  81-86;  eligibility  to,  83-84; 
members  of  Bundesrat  ineligible  to, 
83-84;  apportionment  of  representa- 
tion in,  85-86,  412;  period  of  mem- 
bership of,  87;  officers  of,  91-92; 
method  of  proceedings  of,  91-94; 
Standing  Orders  of,  91-92;  divisions 
of,  92;  publicity  of  proceedings  of, 
93-94,  412;  immunity  of  members 
of,  from  criminal  prosecution,  95-97, 
414;  salaries  prohibited  to  members 
of,  97,  414;  majority  principle  pre- 
vails in,  no,  413;  Imperial  Chan- 
cellor may  not  be  a  member  of,  127; 
right  of,  and  its  limitations,  to  grant 
expenditures,  307-311,  392;  consent 
of,  necessary  in  military  conventions 
if  imperial  matters  are  affected,  397- 

398- 

Removal  of  judges,  200-202. 

Requisitions,  fulfilment  of,  22,  172; 
military,  67 ;  of  troops  for  police  pur- 
poses, 358  n.,  371,  431. 

Residence  abroad,  loss  of  citizenship 
by,  164-167. 

Reuss,  3  n.3,  6,  19  n.,  403;  representa- 
tion of,  in  Reichstag,  85  n.8. 

Revenue  of  German  Empire,  259-290. 

Revenue  regulations,  63-64,  66. 

River  dues,  22,  406. 

Rivers,  tariff  boundaries  include,  272- 

373- 

Road  laws,  23. 

Roads,  construction  of,  22,  406. 
Royal  Statistical  Office,  287-288. 
Rulers  of  States,  relations  of,  to  army 

contingents,  369-370. 


448 


INDEX 


SALARIES    prohibited    to   members   of 

Reichstag,  97-98,  414. 
Salt,  tax  on,  260,  278  n.1,  291,  300,  416- 

4i7. 

Sanction  of  a  law,  100  n.*,  111-117; 
proper  organ  for  imparting,  113-117. 

Saxe-Altenburg,  19  n.,  85  n.*,  403. 

Saxe-Coburg-Gotha,  19  n.,  85  n.*,  403. 

Saxe-Meiningen,  6,  19  n.,  85  n.*,  403. 

Saxe-Weimar,  3  n.*,  19  n.,  85  n.*,  403. 

Saxony,  3  n.*,  6,  19  n.,  403;  votes  of,  in 
Bundesrat,  50;  representation  of,  in 
Reichstag,  85  n.*;  excluded  from 
privilege  of  erecting  its  own  Supreme 
Court,  173  n.1;  population  of,  at 
formation  of  North  German  Con- 
federation, 330  n.a;  military  agree- 
ment with,  349  n.*,  350  n.*,  364  n.2, 
368,  393-394;  peculiar  juristic  char- 
acter of  convention  with,  399-401; 
Sonderrechte  of,  400-401. 

Schaumburg-Lippe,  19  n.,  403;  repre- 
sentation of,  in  Reichstag,  85  n.*; 
military  convention  with,  351  n.*, 
370,  380,  381,  390,  398  n.». 

Schlussprotokoll,  Bavarian,  53. 

SchSften,  174-178. 

Sch&ftengerichte,  174-178. 

Schwarzburg-Lippe,  military  convention 
with,  370,  380,  381,  390. 

Schwarzburg-Rudolstadt,  19  n.,  85  n.*, 

403- 

Schwarzburg-Sonderhausen,  19  n.,  85 
B-*I  4°35  military  convention  with, 
351  n.8,  398  n.». 

Schwurgerichte,  183-186. 

Search,  right  of,  356. 

Secretary  of  State  for  Navy,  34. 

Securities,  stamp  tax  on,  289. 

Settlement,  regulation  of,  21,  405. 

Siege,  state  of,  355. 

Signals  used  in  navigation,  supervision 
of,  22,  406. 

Slander,  punishment  of,  96,  178. 

Sonderrechte  of  South  German  States, 
17,  26-27,  46  n-*,  400-402;  States 
enjoying,  exempted  from  share  in  cer- 
tain revenues,  261;  bearing  of,  on 
payment  of  interest  and  principle  of 
imperial  debt,  297. 

South    German    States,   14-17.      See 


German  States  and  North  German 

Confederation. 
Sovereignty,  not  a  test  of  statehood,  20 ; 

rests  with  Bundesrat,  32-33,  57-58, 

115-116. 

Staatlos,  condition  of  being,  144,  155. 
Stamp  taxes,   imperial,   260,   288-290, 

300;  collection  of  and  accounting  for, 

293- 

Stamp  Tax  Law,  Imperial,  182. 
Standard,  imperial,  Kaiser's  right  to,  39. 
Standing  Orders,  of  Bundesrat,  52,  126; 

of  North  German  Bund,  91  n.*;    of 

Reichstag,  91-92. 

State-rights  theory  in  Germany,  323  n.1. 
States,  individual.    See  German  States. 
Statistical  fee,  260,  287-288. 
Statistical  Office,  Royal,  287. 
Statthalter,  office  of,  in  Alsace-Lorraine, 

223,  224-227,  235,  236. 
Stock,  stamp  tax  on  shares  of,  289. 
Succession,  laws  of,  23;  to  Kaisership, 

34-36,  74-78. 
Suffrage,  right  of,  81-83. 
Sugar,  tax  on,  260,  300,  417. 
Supreme  Courts,  173,  187-188. 

TARIFF,  extent  of  jurisdiction  of  Ger- 
man, 269-273. 

Tariff  Bundesrat  (1867),  14-15. 

Tariff  laws,  cooperation  of  Kaiser 
and  Bundesrat  in  issuing  and  admin- 
istering, 63-64. 

Tariff  Matters,  Committee  on  (Bund- 
esrat), 55,  281. 

Taxes,  imperial  control  of  legislation 
pertaining  to,  21 ;  collection  of,  by 
the  States  for  the  Empire,  24,  290- 
294 ;  sources  of  imperial  income  from, 
359-290. 

Tax  laws,  rights  of  Bundesrat  concern- 
ing, 63-64. 

Telegraph    administration,    22,    23-24, 

349,  258,  421-424- 

Tenants,  lawsuits  of,  177. 

Territorial  Committee  for  Alsace-Lor- 
raine, 217,  222,  232-234. 

Thiiringian  Customs  and  Tax  Union, 
280  n.'. 

Thiiringian  States,  3  n.*,  350  h.2,*,  370, 
38°.  38i,  39°.  393.  398  n.»,  403- 


INDEX 


449 


Tobacco,  tax  on,  260,  300,  417. 

Trade  and  Commerce,  Committee  for 
(Bundesraf),  55,  68,  384. 

Traffic  regulations,  22,  419. 

Transfers  of  judges,  200-202. 

Transit  dues,  261,  273,  275-277. 

Transportation,  free  railroad,  to  mem- 
bers of  Reichstag,  97. 

Transportation  charges,  lawsuits  over, 
177. 

Travellers,  lawsuits  of,  177. 

Treason,  trial  for,  190,  357;  penalty  for, 
356  n.3. 

Treasury  Office,  imperial,  128,  290. 

Treasury  warrants,  318. 

Treaties,  conclusion  of,  41,  66,  99;  with 
United  States  regarding  citizenship, 
165  n.4;  customs,  280  n.a;  military, 
332.  393-402. 

Treaty,  Customs  Union,  14-15,  50,  62, 
64,  262-268,  418;  relative  to  Alsace- 
Lorraine,  204. 

Trespass,  lawsuits  over,  178. 

ULM,  imperial  administration  of,  385  n.1. 
Uniforms  in  army,  370,  429. 
United  States,  citizenship  of  Germans 
in,  165  n.4. 

VAGRANTS,  ineligibility  of,  to  citizenship, 

ISO- 
Veterinary  police,  imperial  control  of, 

33,  406. 

Veto,  Kaiser  has  no  right  of,  43,  114. 
Vice-Chancellor,  appointment  of,  132- 

133- 

Votes,  apportionment  of,  among  States 
represented  in  Bundesrat,  49-50,  407 ; 
majority  principle  governs,  in  Bund- 
esrat, 54,  no,  129;  in  Committees  of 
Bundesrat,  55;  in  election  of  mem- 
bers of  Reichstag,  81-83;  *n  Reichs- 
tag, 94,  no,  129,  413. 

WAGNER,  Adolf,  on  imperial  finances 
as  affected  by  Frankenstein  Clause, 
302. 

Waldeck,  19  n.,  403;  representation  of, 
in  Reichstag,  85  n.*;  military  conven- 


tion with,  351  n.2,  370,  371  n.2,  380, 
381,  390,  393,  396,  398. 

Waldshut,  communes  of,  excluded  from 
tariff  jurisdiction,  370  n. 

War,  declaration  of,  40-41,  66,  409-410. 

Warehouse  regulations,  277. 

War  Ministries  of  individual  States, 
366-367,  388. 

War  Treasure,  imperial,  67,  251-253, 
3*9- 

Water  rights,  regulation  of,  23,  406. 

Waterways,  22,  272-273,  406,  425. 

Way-bills,  stamp  tax  on,  289. 

Weights  and  measures,  regulation  of, 
21,  406. 

Weser,  lower,  included  in  common 
tariff  territory,  273. 

Wilhelm-Luxemburg  railroad,  the,  258, 
269  n.2. 

Wine,  tax  on,  274. 

Witness  fees,  171. 

Wiirttemberg,  3  n.*,  16,  19  n.,  403; 
Sonderrechte  of,  26,  46  n.4,  401-402; 
votes  of,  in  Bundesrat,  50;  represen- 
tation of,  in  Reichstag,  86  n.1,  412; 
treaty  with  United  States  relative  to 
citizenship,  165  n.4;  courts  in,  173 
n.1;  postal  and  telegraph  administra- 
tion in,  249  n.1,  295,  296;  has  no 
share  in  certain  imperial  revenues, 
260-261 ;  taxation  of  beer  and  brandy 
in,  261,  278-280;  a  small  amount  con- 
tributed by,  to  expenses  of  central 
administration,  295-296;  rights  of, 
in  military  matters,  341-342;  mili- 
tary convention  with,  349  n.s,  350  n.*, 
364  n.3,  368,  393-394;  erection  of 
fortifications  in,  383  n.1,  385  n.1;  ad- 
ministration of  military  finances  by, 
393- 


Zollannexe,  269. 

Zollexclaven,  270-271. 

Zottverein,  administrative  organization 
in,  62;  Bundesrat  succeeds  to  rights 
of,  62,  64;  importance  of  r&le  played 
by,  in  realization  of  German  unity, 
361-363. 


2G 


FRANCE 


BY  JOHN  EDWARD  COURTENAY  BODLEY 
Cloth  Demy  8vo  $2.50  net 


In  this  work  the  author  has  treated  French  institutions  with  the  same  care  and 
method  as  were  given  to  those  of  this  country  by  Bryce  in  his  "  American  Com- 
monwealth," or  Russia  by  Mackenzie  Wallace. 

Of  the  two  volumes,  the  first  deals  in  an  exhaustive  and  judicial  way  with  "  The 
Revolution  and  Modern  France,"  "The  Constitution  and  the  Chief  of  the  State." 

The  second  is  devoted  to  "  The  Parliament  System  "  and  "  Political  Parties." 

The  work  represents  the  result  of  a  seven  years'  continuous  residence  in  France 
in  constant  association  with  the  French  people  of  all  classes  and  of  all  shades  of 
opinion. 

In  connection  with  Bryce's  "  American  Commonwealth,"  it  affords  the  basis  of  an 
exhaustive  comparative  study  of  the  institutions  of  the  two  great  modern  republics. 

COMMENTS 

"  Mr.  Bodley's  considerable  work  on  France  is  a  book  of  political  philosophy, 
but  one  in  which  the  philosophy  is  so  much  disguised  by  the  lightness  produced 
by  constant  modern  and  personal  illustration  that  it  will  be  possible  for  the  general 
reader  to  digest  its  contents  without  knowing  how  much  philosophy  he  has  read. 
In  Jhis  respect  it  may  be  compared  with  the  works  of  Tocqueville  and  Mr.  Bryce 
upon  the  United  States ;  but  it  is  easier  to  read  than  either  of  those  remarkable 
books,  and  it  strikes  us  as  being  sounder  in  its  philosophy  than  was  the  more 
famous  of  the  pair."  —  Athencsum,  London. 

"  It  would  be  impossible  to  exaggerate  the  importance  of  such  a  book  as  Mr. 
Bodley's  admirable  study  of  France  since  the  Revolution.  The  book  has  the  three 
essential  qualities  of  a  foreigner's  study  of  another  land  than  his  own  :  sympathy ; 
varied  and  accurate  knowledge  of  his  subject;  and  moderation  in  praise  and 
blame.  A  juster  view  of  France  does  not  exist  in  English  ;  a  fuller  and  more  com- 
petent treatment  of  a  complex  and  aboundingly  interesting  subject  has  never  been 
given  us." —  The  Literary  Era. 

"  Mr.  Bodley's  work  is  deeply  thoughtful  in  tone,  comprehensive  in  scope,  graphic 

:xecution.     It  is 
itory  in  English- 


in  style,  and  altogether  masterly  in  conception  and  painstaking  execution.     It  is 
bound  to  be  the  paramount  authority  on  French  constitutional  his' 


speaking  countries."  —  Chicago  Tribune. 


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The    American    Commonwealth 

By  the  Right  Hon.  JAMES  BRYCE,  D.C.L., 
AUTHOR  OF  "THE  HOLY  ROMAN  EMPIRE";  M.P.  FOR  ABERDEEN 

THIRD  EDITION,  REVISED   THROUGHOUT 
IN  TWO   VOLUMES 

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PRESS  NOTICES 

"  His  work  rises  at  once  to  an  eminent  place  among  studies  of  great  nations  and 
their  institutions.  It  is,  so  far  as  America  goes,  a  work  unique  in  scope,  spirit,  and 
knowledge.  There  is  nothing  like  it  anywhere  extant,  nothing  that  approaches  it. 
.  .  .  Without  exaggeration  it  may  be  called  the  most  considerable  and  gratifying 
tribute  that  has  yet  been  bestowed  upon  us  by  an  Englishman,  and  perhaps  by 
even  England  herself.  .  .  .  One  despairs  in  an  attempt  to  give,  in  a  single  news- 
paper article,  an  adequate  account  of  a  work  so  infused  with  knowledge  and 
sparkling  with  suggestion.  .  .  .  Every  thoughtful  American  will  read  it  and  will 
long  hold  in  grateful  remembrance  its  author's  name." —  The  New  York  Times. 

"  Written  with  full  knowledge  by  a  distinguished  Englishman  to  dispel  vulgar 
prejudices  and  to  help  kindred  people  to  understand  each  other  better,  Professor 
Bryce's  work  is  in  a  sense  an  embassy  of  peace,  a  message  of  good-will  from  one 
nation  to  another."  —  The  Times,  London. 

"  This  work  will  be  invaluable  ...  to  the  American  citizen  who  wishes  some- 
thing more  than  a  superficial  knowledge  of  the  political  system  under  which  he 
lives  and  of  the  differences  between  it  and  those  of  other  countries.  .  .  .  The  fact 
is  that  no  writer  has  ever  attempted  to  present  so  comprehensive  an  account  of  our 
political  system,  founded  upon  such  length  of  observation,  enriched  with  so  great  a 
mass  of  detail,  and  so  thoroughly  practical  in  its  character.  .  .  .  We  have  here  a 
storehouse  of  political  information  regarding  America  such  as  no  other  writer, 
American  or  other,  has  ever  provided  in  one  work.  ...  It  will  remain  a  standard 
even  for  the  American  reader."  — New  York  Tribune. 

"  The  book  should  be  known  by  every  American  who  wishes  to  understand  his 
own  country.  ...  It  is  by  far  the  most  able,  sincere,  candid,  and  impartial  study 
of  the  condition  of  the  United  States  that  has  ever  appeared  since  De  Tocqueville's 
memorable  work."  —  Boston  Beacon. 

THE  AMERICAN  COMMONWEALTH.  Abridged  Edition.  For  the  use  of  Col- 
leges and  High  Schools.  Being  an  Introduction  to  the  Study  of  the  Govern- 
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A  Short   History  of  Germany 

BY  ERNEST  F.    HENDERSON 

A.B,  (Trinity),  M.A.  (Harvard),  Ph.D.  (Berlin) 

AUTHOR  OF  "A  HISTORY  OF  GERMANY  IN  THE  MIDDLE  AGES,"  ETC. 


Cloth  8vo  $2.50  net 


"Every  sentence  contains  fact,  fact  valuable  and  desirable;  and  the  careful, 
retentive  reader  will,  after  perusal,  find  himself  possessed  of  a  goodly  stock  of 
important  information  as  well  as  of  a  pleasant  memory  of  enjoyable  hours  passed 
in  the  reading  of  the  work."  —  Book  News,  Philadelphia. 

"  All  in  all,  this  history  of  Germany  may  be  called  a  notable  work,  and  if  not  the 
best,  at  least  one  of  the  best  ever  written  on  the  subject.  It  is  certainly  one  to  be 
recommended  to  the  American  reader  who  seeks  a  better  understanding  of  this 
great  people."  —  A.  P.,  in  The  Courier-Journal. 

"  Mr.  Henderson's  history  proves  that  the  modern  chronicle  of  the  development 
of  a  nation  can  be,  and  often  is,  even  more  interesting  than  the  old-fashioned  his- 
tory which  was  merely  a  collection  of  biographies  of  famous  men  and  descriptions 
of  dramatic  events." —  The  Times,  Washington. 

"  It  is  scarcely  fair  to  compare  Mr.  Henderson  with  so  supreme  a  stylist  as 
Green,  but  the  former  possesses  to  a  remarkable  degree  the  same  vividly  dramatic 
power  of  sketching  in  a  scene  or  portrait.  Examples  of  this,  from  the  purely  de- 
scriptive point,  are  extremely  numerous."  —  New  York  Commercial  Adve:  tiser. 

"  Such  a  work  as  this  '  Short  History '  was  needed,  since  no  other  American 
writer  has  undertaken  the  task  in  the  light  of  modern  methods,  and  it  is  a  worthy 
contribution  to  historical  literature.  Mr.  Henderson's  -style  is  clear,  concise,  and 
engrossing,  and  he  is  eminently  just  and  reasonable  in  exposition." 

—  Detroit  Free  Press. 


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